Browsing by Author "Munasinghe, K."

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Adversarial litigation practice in Sri Lanka: A mechanism for legal professionals to shine with disillusioned clients
(University of Kelaniya, 2011) Munasinghe, K.
There are many instances in society, where people have certain disputes with one another, for example, conflicting claims or rights and an assertion of a right, claim, or demand on one side, met by contrary claims etc. on the other. In such cases, if the parties are unable to settle the dispute among themselves or by an Alternative Dispute Resolution (ADR) method they will straight away step into litigation. Sri Lanka as a country following the Common Law tradition, the applicable mode of litigation is adversarial. It has been described as being too confrontational, since the cases presented to courts as disputes and trials are regarded as contests of opposing interests. This study aims to analyze the current and future applicability and relevancy of the adversarial process in the Sri Lankan context, with special reference to whether this system is a really helpful process to secure the rights of the parties in dispute or if it is a system depending on talent, reputation and competence of the legal professionals. The sample data collection for the study was done by distributing a questionnaire among legal professionals, scholars and the general public from different social segments. The intended outcome of the sample data collection was to get participants‟ views on the technical and practical aspects of the system. The general public from different sections revealed the ideas prevalent in a non-legal background. The study further compared and analyzed different litigation practices in foreign jurisdictions with that of the Sri Lankan system. The findings of the study are that the adversarial system is highly criticized and discouraged in many jurisdictions, its benefits largely dependent on the capabilities of legal professionals, less creativity of the judiciary, absence of a reliable mechanism to measure the transparency of the process, and sometimes technical difficulties occurring in securing the rights of the innocent. Finally, the study suggests learning lessons from the Civil Law tradition‟s inquisitorial process to develop and correct the Sri Lankan litigation process for the protection of the rights of the citizens, mainly the poor, underprivileged, disadvantaged and marginalized.
A critical review of gender neutrality in the dissolution of marriages from the perspective of Kandyan Law
(University of Kelaniya, 2015) Munasinghe, K.
Sri Lankan society consists of multicultural, multiethnic groups and the laws governing these groups in terms of their main social affairs are also considered to be different. WhereasRoman Dutch Law operates as the common law of the country, Kandyan Law, Muslim Law and Thesawalamai Law also exists in certain domains. In the present context, Kandyans can be defined as inhabitants who are descendants of the families settled in the Kandyan kingdom in 1815. In ancient times, Kandyans practised their own traditions and customswhich highlightedthe unique features of their society. Later on, these traditions and customs of the Kandyans were codified under the British administration. A new set of laws pertaining to Kandyan marriage and divorce were introduced by the British through the Kandyan Marriage and Divorce Act, which presently prevails under the Act no.44of 1952. Section 32 of the aforesaid Act introduced six grounds for the dissolution of a Kandyan marriage, namely, (a) adultery by the wife after marriage, (b) adultery by the husband, coupled with incest or gross cruelty, (c) complete and continued desertion by the wife for two years, (d) complete and continued desertion by the husband for two years, (e) inability to live happily together, (actual separation from bed and board for a period of one year shall be the test), finally (f) mutual consent. The purpose of this study is to assess whether the six grounds for the dissolution of a Kandyan marriage create an unequal treatment towards women in terms of obtaining a divorce. The objective of the study is to critique the discriminatory provisions of the grounds for divorce with special reference to the principle of matrimonial fault and other domestic and international standards. The study is entirely based on a qualitative approach, which largely focused on the provisions of Kandyan Marriage and Divorce Act No. 44 of 1952, the Constitution of the Democratic Socialist Republic of Sri Lanka and other relevant domestic/ international legal instruments. The study highlights the discriminatory issue relating to women in terms of burden of proof of grounds number (a) and (b) under the matrimonial fault and other domestic and international standards. The study concludes by emphasizing the necessity of establishing gender neutrality in the dissolution of marriage under Kandyan law, further suggesting the need for revising the grounds on par with modern social requirements such as habitual drunkenness, the imprisonment of a spouse, and the disappearance of a spouse.