This article is written by Ajay Jose, pursuing M.A. Business Laws from NUJS, Kolkata. The article describes the Hierarchy of Courts & Justice System in Sri Lanka.
Law is a set of rules to regulate behaviour of people in a given society at a given time. According to Hobbes[1]- law is an obligatory rule of conduct. The commands of him or them that have coercive power.
Salmond [2] states that law is the body of principals recognised and applied by the state in the administration of justice. There could be legal rules and moral rules. Legal rules are called laws and non-legal rules are called moral rules/customs/ethics. Legal rules cannot be breached and it is punishable. E.g. Cheating, robbery, rape, murder etc. Non legal rules are not punishable. E.g. Drinking alcohol on pooja days, not giving room in a bus to an elderly, unmarried couple living together.
Who has Created Laws?
It has evolved in the society by Custom, Convention, Religion, Beliefs etc. It is made by a supreme leader (a King) or a body of people (a parliament) in a society, almost all the areas in human activity are controlled or influenced by law.
Law has become a regulatory device in controlling the conflicting social interest.
Law must be able to cater to the needs of the society and influence behavior of people. Businesses are also part of the society and their behavior is also governed or influenced by law. There are so many laws that govern businesses in any society.
Laws of Sri Lanka
Sri Lanka [3] has been home for many communities for a long period of time. Sinhala, Tamil, Muslim are the dominant Ethnic groups. Buddhism, Hinduism, Islam and Christianity are the dominant Religions.
Further some geographical areas are dominated by certain communities whilst other areas have mixed communities.
The local laws were influenced by this multi-ethnic and multi-religious characteristics. Therefore, the local laws – Kandyan, Thesawalamai, Islamic laws have evolved based on such characteristics.
Our motherland has been invaded and conquered by Portuguese, Dutch and British[4]. Their laws and legal systems also have been introduced to our country in a substantial manner.
Therefore, the laws and legal systems can be broadly divided into two periods –
- Laws before the foreign invasion.
- Laws after the foreign invasion.
Sinhala law (now remain as Kandyan law)
There had been a comprehensive legal system in Sri Lanka. If not, the country would not have developed and governed in the past.
It would have been influenced by the laws and customs of indigenous people by the time the early settlers who migrated to Sri Lanka from Indian and the customs and laws that they brought into Sri Lanka by then. Now it is applicable as a personal law for people who get designated as Kandyans for the purposes of personal laws such as marriage, property rights etc.
Thesawalamai Law
It was in operation in the North Kingdom by the time Portuguese came to Sri Lanka. The sources of this law trace to customs and laws used by Dravidians in Malabar Coast and Coromandel Coast. It is still applicable in areas like Jaffna.
The meaning of Thesawalamai is something like “Law of the Land”. So, it is applicable for people who live in a specific area.
Muslim Law
Although Muslim did not have a separate Kingdom, the settlers of Muslims had their own laws applicable to them but there is no hard evidence to show that Sinhalese Tribunals administered Muslim Law separately in their legal system. [5] Portuguese and Dutch recognized it as a separate law. Still, it is applicable as a personal law for Muslims especially in marriages, divorces etc.
The Influence of Western Laws and Legal Systems to Sri Lanka
Maritime Provinces were acquired by Portuguese in 1505. By that time, a well established legal system was in operation. [6] They agreed to uphold the system. But they could not comprehend the system and the substance of the local laws. When they administered, with or without their knowledge, their own systems, thinking creped into the system.
Dutch Influence 1656 to 1796
The laws that they were having by that time in their own country was the Dutch law influenced by the Roman laws. Therefore, it was called Roman-Dutch Law.
- They applied their laws to Dutch settlers, their servants, locals who lived in their Forts and those who practiced Christianity.
- The Roman Dutch was a comprehensive law and when they thought that local laws were unsuitable or silent, they used their R&D for locals too. Therefore it became a Residual law.
- Both the Roman-Dutch and Portuguese Laws were not applied to Kandyans as such areas were never controlled by them.They establish an elaborate court system in Sri Lanka[7].
The British Influence 1796 to 1948
During 1796 Maritime Provinces surrendered to the British and formally ceded in 1802 and the Kandyan kingdom was also captured by the British in 1815. However, British continued to apply local laws and R &D law subject to changes done if any by introducing statutes of their own. The introduction of English Law and the judicial system greatly changed the laws and legal system of Sri Lanka.
- Currently, the general law applicable to Sri Lanka is English Laws, R & D law and the statute law created by our own parliaments, much of them based on those ideas.
- Property laws are still influenced by R &D and Commercial and Criminal Laws and procedures are mainly influenced by English Laws.
- In contract Law, English law of Delicts alone with R &D are applicable. [8]
- Kandyan law is applicable only to Kandyan Sinhalese, Thesawalamai is applicable to Tamils living in Jaffna and Muslim law for all Muslims living in Sri Lanka.
These special laws are restricted to their personal laws such as marriage, divorce, inheritance and land matters.
Classification of Laws
- Criminal Law
Punishment by imprisonment, penalty or death. Sate will prosecute, the alleged person named as accused. Courts and Procedures are different. It should prove beyond reasonable doubt.
E.g. Robbery, hurt, rape, death, fraud etc.
The offense should be stated in a written law such as the Penal Code, Exchange control Act, Customs Ordinance etc as an offense punishable.
Criminal Courts such as Magistrates Court and High Court will hear cases and Procedure is enumerated in Acts such as Criminal Procedure Code.
- Civil Law
Damages or other relief, person sustained damage or breach has to institute legal proceedings, called plaintiff and the other party is called the defendant.
- They are designed to protect private rights and state will not prosecute. Proof, balance of probabilities.
- Civil courts will hear the cases and procedure is indicated in the civil procedure Code.
Sources of Law
- Statutes
- Customs
- Case Law
- Roman Dutch Law
- English Law
Court System of Sri Lanka
The court structure consists of –
- A Supreme Court
- A Court of Appeal
- High Courts
- Municipal Courts
- Primary Courts [9]
Additionally, there are numerous tribunals etc. In cases involving criminal law, a Magistrate’s Court or a High Court is the only court with primary jurisdiction, the respective legal domains of each are provided in the Code of Criminal Procedure.
- The preponderant majority of criminal law cases are initiated at a Magistrate’s Court. These cases may be initiated by any police officer, or public servant, with a written or oral complaint to the magistrate (see section on Magistrate’s Court).
- Murder trials and various offenses against the State originate in a High Court (see section on High Courts).
- Original jurisdiction over most civil matters lies with the relevant District Court (see section on District Courts).
Until 1972, The Judicial Committee of the Privy Council in Britain was the final court of appeal for Sri Lanka. The right of appeal to the Privy Council “was abolished…as there were concerns that any attempt to discard the existing Constitution in 1972 might be adjudged unconstitutional.”
At that time, “Parliamentarians constituted themselves as members of what was termed the ‘Constituent Assembly’ to draft and adopt a new Constitution,” which became effective on May 22, 1972. It has been suggested that the concerns of minority communities in Sri Lanka were not adequately considered in the drafting of that Constitution.
On Aug 31, 1978, another Constitution replaced the 1972 Constitution. Under this Constitution, for the first time in Sri Lanka an Executive President, elected by the entire country, became the leader of the country. Under the earlier Constitution, the government was headed by a Prime Minister, who, as a Member of Parliament, would have been elected by just one electorate in the country.
As a consequence of major civil strife that erupted in 1983, now efforts are being made to replace the 1978 Constitution with a new Constitution in order to grant greater political autonomy to the different regions in the country. These efforts, at present, seem stalled in an All Party Conference constituted by the current President, MahindaRajapakse. Furthermore, not all political parties in the country agreed to participate in the Conference.
There are also other courts such as the Kathi Courts that handle matrimonial disputes among Muslims, and numerous tribunals (see section on Other Courts).
- Supreme Court
The constitution of Si Lanka provides specific provisions as to the powers, duties, jurisdiction and the procedure of the Supreme Court and of the Court of Appeal.
The enshrining of the provisions of SC and Court of Appeal (CA) in the Constitution of SL as regards the highest courts in Sri Lanka is to guarantee the independence of the judiciary and also to safeguard the tenure of judges of the highest courts. [10]
Supreme Court is the Highest Court in Sri Lanka and it has the final appellate jurisdiction, matters relating constitutional affairs, Fundamental rights, Consultative jurisdiction, Election Petitions, hear any breach of parliamentary privileges, any matter that parliament may refer (Refer Article 118 to 136 of Sri Lanka Constitution) [11]
- Appeal Court
The Next highest Court created by the constitution. The Appeal court has the jurisdiction for correction of any error in fact or law committed by any court of the first instance, tribunal or other judicial institution.
- It has the power to affirm, reverse, correct or modify any order, judgment or decree or sentence given by above institutions. [12]
- It also has the power to grant injunctions and writs etc. (Refer article 137 to 147 of Sri Lankan Constitution [13])
Courts of First Instances
- The High Court
High Court has two judicial powers now. High Courts exercising criminal jurisdiction as well as Commercial jurisdictions. High Court has the power to conduct-
- High Court has the power to conduct trials on original criminal jurisdiction.
- High Court can conduct a trial by jury or trial at bar.
- High court can impose any sentence or penalty prescribed by law.
Under the 13th amendment to the Sri Lankan Constitution, it has the appellate and revisionary jurisdiction by way of Provincial High Court.
Provincial High Court has been vested with appellate and revisionary jurisdiction in respect of orders and judgments of the magistrates Court, Primary Courts, labor Tribunals, Agrarian Services Commissioners Tribunals within the province.
Commercial High Court was established under the High Court of the Provinces act of 1996. It has jurisdiction to hear civil actions where the cause of action has arisen out of commercial transactions in which the debt, damage or demand exceeds One Million.
- District Court
District Courts are empowered with unlimited original civil jurisdiction. This court deals in money, revenue, trust, insolvency, commercial matters, family matters such as divorce, adoption, custody of children etc. If aggrieved y a decision of DC, an appeal could be made to the Court of Appeal.
- Magistrates Court (MC) – Criminal jurisdiction
This court exercises basic criminal summary jurisdiction and inquiries into the commission of offenses. Summary jurisdiction is applied where the Magistrate could read charges against an accused and asked whether he or she is guilty or not guilty.
- If pleads guilty, the verdict of guilt will be recorded and punishment will be imposed.
- If doesn’t plead guilty, a trial will be fixed and witnesses will be called and cross-examined and a decision will be made.
Magistrate Courts have the power to imprison or impose penalties as prescribed by law. When alleged offense seems not be a one triable summarily by MC, the Magistrate will make a Preliminary Inquiry to find out whether there is enough evidence to forward it to High Court.
The charge will be read but accused will not be asked to plead guilty or not. Witnesses are produced and cross-examined to find out the sufficiency of the evidence to proceed to High Court. Aggrieved by the decisions of an MC, an appeal could be made to Provincial High Court of the relevant province.
- Primary Court (Civil jurisdiction)
The judicature Act provides for primary court adjudication where the debt, damage, demand or claim does not exceed Rs.1500. Further Primary Court has very important jurisdictions such as – actions for the enforcement of local authority by-laws and recovery of revenue due to such authority.
Land disputes which are likely to cause the breach of the peace.
It could decide who is in the possession of the land but it does not decide on the ownership of the land which is a matter for District Court to decide.
- Alternate Dispute Settlements
There are many steps taken by the judicial System to sort out problems out of the mainstream court system. The intention was to make things easy and settle disputes early, reduce the workload of courts etc.
- Mediation Boards
The mediation Boards Act of 1995 and subsequent amendments govern these mediation aspects. The Minister has the power to set up Mediation Boards and set the areas that will come under such mediation boards. Commercial mediations are reality now in Sri Lanka.
Arbitration is also another form of dispute resolution. Arbitration Act of 1995 and subsequent amendments govern the procedure. Tribunals- Labour Tribunal established under industrial Disputes Act provides provisions for the employees to institute the action against employers.
Agricultural Tribunals established under the Agrarian Services Act of 1979 enables settling disputes as to cultivation and related matters[14].
Conclusion
Sri Lankan legal system was originally a combination of Roman-Dutch and English Law. The present system of judicial administration and organization is based on the current Constitution introduced in 1978 apart from the personal laws in existence.
No changes to the judicial system were made under the recent changes to the Constitution with the changes of the government towards Good Governance popularly known as “Yahapapalaya”.
The Judiciary comprises of the Supreme Court, Court of Appeal, Provincial High Courts, District Courts, Magistrates Courts and Primary Courts. [15]
The Supreme Court is the highest court headed by the Chief Justice of and other judges. Infringement of any fundamental rights declared and recognized by Chapter 3 or 4 will have a remedy where Article 126 of the Constitution has exclusive jurisdiction to hear and determine any questions relating to infringement or imminent infringement by an Executive or administrative action.
That’s all about Sri Lankan Justice System. What are your views about the justice system of Sri Lanka? Is it Justice Driven? Comment below & Don’t forget to Share.
Bibliography
The Constitution: Sri Lanka. Chapters XV (Judiciary) and XVI (Superior Courts), in the Official Website of the Government of Sri Lanka.
Cooray, Anton. “Oriental and Occidental Laws in Harmonious Co-existence: The Case of Trusts in Sri Lanka.” Electronic Journal of Comparative Law. v.12.1 (May 2008)
Courts of Law. The Sri Lankan “Ministry of Justice and Law Reforms,”
Goonesekera, Savitri. “The Roman Dutch Law in the Plural Legal System of Sri Lanka.” The Colombo Law Review. Faculty of Law, University of Colombo, Sri Lanka. v.9, (1998) pp.1-36.
Jayasuriya, Dayanath C. “Sri Lanka,” in Legal Systems of the World: A Political, Social, and Cultural Encyclopedia. Vol. IV, S-Z. ed. Herbert M. Kritzer. ABC.CLIO: Santa Barbara, CA (2002). pp. 1526-1531.
“Muslim Personal Law and Women,” by Cat’s Eye, in the Island newspaper, Sri Lanka, July 9, 2003. Access this URL and select the “Midweek Review” link on the left panel (Accessed Feb. 2007).
Rajepakse, Ruana. An Introduction to Law in Sri Lanka. Aitken Spence Printing, Pte, Ltd., 315 Vauxhall Street, Colombo 2, Sri Lanka 1989.
Reynolds, Thomas H., and Arturo A. Flores. Eds.“Sri Lanka.” (June 2004 release), in Foreign Law: Current Sources of Codes and Legislation in Jurisdictions of the World. William S. Hein &Co.Inc. Buffalo, New York. v.3 (2003) pp. Sri Lanka I- Sri Lanka 32.
References –
[1] The 17th Century English philosopher Thomas Hobbes is now widely regarded as one of a handful of truly great political philosophers, whose masterwork Leviathan rivals in significance the political writings of Plato, Aristotle, Locke, Rousseau, Kant, and Rawls. Hobbes is famous for his early and elaborate development of what has come to be known as “social contract theory”, the method of justifying political principles or arrangements by appeal to the agreement that would be made among suitably situated rational, free, and equal persons.[2] Sir John William Salmond KC (3 December 1862 – 19 September 1924) was a legal scholar, public servant and judge in New Zealand.
[3] Sri Lanka, officially the Democratic Socialist Republic of Sri Lanka (formerly known as Ceylon), is an island country in South Asia near south-east India. Sri Lanka has maritime borders with India to the northwest and the Maldives to the southwest
[4]Goonesekera, Savitri. “The Roman Dutch Law in the Plural Legal System of Sri Lanka.” The Colombo Law Review. Faculty of Law, University of Colombo, Sri Lanka. v.9, (1998) pp.1-36
[5] Muslim Personal Law and Women,” by Cat’s Eye, in the Island newspaper, Sri Lanka, July 9, 2003. Access this URL and select the “Midweek Review” link on the left panel (Accessed Nov 7)
[6]Jayasuriya, Dayanath C. “Sri Lanka,” in Legal Systems of the World: A Political, Social, and Cultural Encyclopedia. Vol. IV, S-Z. ed. Herbert M. Kritzer. ABC.CLIO: Santa Barbara, CA (2002). pp. 1526-1531
[7]Rajepakse, Ruana. An Introduction to Law in Sri Lanka. Aitken Spence Printing, Pte, Ltd., 315 Vauxhall Street, Colombo 2, Sri Lanka.1989
[8]Muttettuwegama, Ramani. “‘But I am both.’ Equality in the Context of Women Living under Parallel Legal Systems: The Problem in Sri Lanka.” A Briefing Document. (Accessed Feb. 2007)
[9] Courts of Law. The Sri Lankan “Ministry of Justice and Law Reforms,” (Accessed Nov 6)
[10] [The] Constitution: Sri Lanka. Chapters XV (Judiciary) and XVI (Superior Courts), in the Official Website of the Government of Sri Lanka.
(Accessed Nov 3)
[11] Art 118. General jurisdiction of Supreme Courts, Art 119. Constitution of Supreme Court, Art 120. Constitutional jurisdiction of the Supreme Court, Art 121. Ordinary exercise of constitutional jurisdiction in respect of Bills, Art 122. Special exercise of constitutional jurisdiction in respect of urgent Bills, Art 123. Determination of Supreme Court in respect of Bills, Art 124. Validity of Bills and legislative process not to be questioned, Art 125. Constitutional jurisdiction in the interpretation of the Constitution, 126. Fundamental rights jurisdiction and its exercise, Art 127. Appellate Jurisdiction, Art 128. Right of appeal, Art 129. Consultative jurisdiction, Art 130. Jurisdiction in election and referendum petitions, Art 131. Jurisdiction in respect of the breaches of Parliamentary privileges, Art 132. Sitting of the Supreme Court, Art 133. Appointment of ad hoc Judges, Art 134. Right to be heard by the Supreme Court, Art 135. Registry of the Supreme Court and office of Registrar, Art 136. Rules of the Supreme Court
[12]Cooray, Anton. “Oriental and Occidental Laws in Harmonious Co-existence: The Case of Trusts in Sri Lanka.” Electronic Journal of Comparative Law. v.12.1 (May 2008)
pp. 1-17. (Accessed Nov 5)
[13] Art 137. The Court of Appeal, Art 138. Jurisdiction of the Court of Appeal, Art 139. Powers in appeal, Art 140. Power to issue writs, other than writs of habeas corpus, Art 141. Power to issue writs of habeas corpus, Art 142. Power to bring up and remove prisoners, Art 143. Power to grant injunctions, Art 144. Parliamentary election petitions, Art 145. Inspection of records, Art 146. Sittings of the Court of Appeal, Art 147. Registry of the Court of Appeal and office of Registrar
[14] Reynolds, Thomas H., and Arturo A. Flores. Eds.“Sri Lanka.” (June 2004 release), in Foreign Law: Current Sources of Codes and Legislation in Jurisdictions of the World. William S. Hein &Co.Inc. Buffalo, New York. v.3 (2003) pp. Sri Lanka I- Sri Lanka 32
[15]Tambiah. H.W. “Sri Lanka,” in Encyclopedia of Comparative Law: National Reports. ed. Victor Knapp. MartinusNijhoff Publishers: Dordrecht, Boston, Lancaster (1987) pp. S-125/S-136
