Law in Sri Lanka: an
introduction
The Sri
Lankan legal system is a rich mixture. Roman-Dutch law, English law and
traditional customary and personal laws exists alongside one another, together
with statute and international law. This combination reflects Sri Lanka’s diversity in
terms of ethnicity (Sinhalese, Tamil, Moors, Malays and Dutch- or
English-descended Burghers), language (Sinhalese, Tamil and English are all
spoken as first languages in different parts of the country) and religion
(including Buddhist, Hindu, Muslim and Christian). However the complexity of the
law presents challenges for lawyers, and specialists may be required in
different parts of the country.
The Roman - Dutch Law gradually gained its presence in Sri Lankan legal system and when British took over from the Dutch, the ruling of Maritime Provinces of Sri Lanka in 1796, they continued to retain and administer the system of laws that existed at the time of the surrender.
The British allowed the continuation of then prevailing laws such as Roman - Dutch Law and the customary laws that applied to the different ethnic groups. The fall of the kingdom of Kandy in 1815 unified the island under British rule. Subsequently the laws of England directly and indirectly, found its way into Sri Lankan legal system. The English principles were introduced from time to time in order to avoid the difficulties faced by the British in ascertaining applicable laws.
Today the Roman - Dutch Law remains as the base of Sri Lanka’s general and common law and becomes generally applicable when statutes and customary laws do not regulate the issue in hand. The influence of the Roman-Dutch Law is evident in the areas of the law relating to succession, persons, property and obligations. The Law of Delict is largely based on the Roman-Dutch Law. The Common Law has been modified in many directions, both expressly and by necessary implication by statutory laws and also by judicial decisions.
The impact of the Common Law System/principles derived from the English Law has a much greater influence on the Laws of Sri Lanka than the Roman tradition. The dominant presence of English law principles in many areas of law - commercial matters in particular exemplifies this fact.
The Commercial Law of Sri Lanka is almost entirely based on the principles of English Commercial Law. Roman-Dutch Law being the common law of Sri Lanka, basically governs the general law of contract in Sri Lanka. Nonetheless, English Law has displaced the Roman - Dutch law in number of special fields of law of contract as well. Certain ordinances embody and incorporated the rules of English law and are in the main reproductions of the corresponding statues. Sale of goods Ordinance and Bills of Exchange Ordinance are such.
In addition, the criminal justice system, is based largely on the British principles. However, it too has undergone drastic changes over the years.
Civil Law Ordinance No. 5 of 1852 introduces directly the Laws of England in Maritime (by Sec. 2) and by Sec. 3 law of England in commercial matters unless there is contrary statutory provisions in Ceylon.
Sale of goods Act in Sri Lanka is based on the English law which was in force in UK at the time of the enactment of the Act.
Furthermore, the ethnic and religious diversity of the nation has led following personal laws to govern the various sections of its community:-
(i) the Kandyan law; (This applies as a personal law to Kandyan Sinhalese)
(ii) the Thesawalamai ; ( which is a system of personal law, applicable to “Malabar inhabitants of the Province of Jaffna” and was codified by the Dutch in 170 . and, Thesawalamai is, essentially, a customary law which is both territorial and personal in character.)
(iii) the Muslim law.- applies to Muslims as their personal law.
Nonetheless, Persons subject to any of the above three personal laws are governed in other respects by the Roman Dutch Law, which is the Common Law of the country.
Sri Lanka courts System
The court-structure consists of a Supreme Court, a Court of Appeal, High Courts, Municipal Courts, and Primary Courts. 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).
The Supreme CourtThe Supreme Court is the highest and final court of record, and exercises final civil and criminal appellate jurisdiction.
Litigants who do not agree with a decision of the original court, be it civil, criminal, or Court of Appeal, may take the case before the Supreme Court, with permission from the Court of Appeal, or special permission from the Supreme Court. The Supreme Court, however, will only agree to consider cases involving a substantial legal issue.
The Supreme Court is composed of a Chief Justice and not less than six, and not more than ten, other judges.
The Supreme Court is entrusted with certain exclusive jurisdictions. Subject to provisions in the Constitution, the Supreme Court exercises jurisdiction over constitutional matters and fundamental rights issues.
Also, the Supreme Court exercises sole and exclusive jurisdiction over questions concerning the constitutionality of a parliamentary bill or a particular provision in the bill, subject to certain constitutional requirements. The Supreme Court has the exclusive jurisdiction to hear and determine issues relating to the interpretation of the Constitution.
The Supreme Court also has the sole and exclusive jurisdiction to hear and determine issues relating to the infringement of fundamental rights by Executive or Administrative action. These fundamental rights include freedom of thought, conscience and religion; freedom from torture; right to equality; freedom from arbitrary arrest, detention and punishment; prohibition of retroactive penal legislation; and freedom of speech, assembly, association and movement.
The Constitution provides for temporary restrictions on fundamental rights if national security issues are involved.
The Supreme Court also exercises consultative jurisdiction. If the President of the Republic deems that a question of law or fact that has arisen is of such a nature and of such public importance, the President may refer the question directly to the Supreme Court for an opinion.
Court of Appeal
The Court of Appeal is the first appellate court for decisions of all original courts and certain Tribunals.
The Court of Appeal is composed of the President of the Court, and not less than six, and not more than eleven other judges. Many cases at the Court of Appeal are presided overbuy a single judge.
The Court of Appeal hears appeals against judgments of the High Courts. It exercises appellate jurisdiction for the correction of errors in fact or in law at a High Court, or any Court of first instance, or Tribunal, or other Institution. In addition to the jurisdiction to affirm, reverse, correct, or modify a judgment, the Court of Appeal may give directions to a Court of first instance, Tribunal, or other Institution, or order a new trial, or order additional hearings as the Court of Appeal deems appropriate.
The Court of Appeal also exercises the power to grant and issue, as provided by law, writs of certiorari, prohibition, procedento, mandamus, and quo warranto.
The Court exercises jurisdiction to grant writs of habeas corpus in order to bring before the Court a person who has to be dealt with according to the law, or to bring before the Court a person illegally or improperly detained in public or private custody.
High Courts
Trials at a High Court are conducted by the State (Sri Lanka), through the Attorney-General’s Department. The Attorney-General’s Department prosecutes on behalf of the State.
Murder trials and various offenses against the State are tried at the High Court; other criminal offenses are tried at a Magistrate’s Court.
While some High Court trials will have a jury, some trials will not have a jury. The types of cases that require a jury are provided in the Second Schedule of the Judicature Act No.2 of 1978. Also, the Attorney-General has the authority to determine whether a case that does not fall into a category provided in the Second Schedule of the Judicature Act No.2 of 1978 should nonetheless have a jury.
The Penal Code stipulates the types of cases argued in a High Court: “The Penal Code defines most of the criminal offenses known to our law. And the Code of Criminal Procedure Act. No: 15 of 1979 sets out which of these offenses [can be tried] by each court [High Court and Magistrate’s Court].” 13
The High Court is composed of not less than ten and not more than forty judges. This Court sits in 16 provinces in the country (16 High Courts).
The Provincial High Court sits in the following cities: Colombo, Kalutara, Galle, Matara,Batticaloa, Jaffna, Chilaw, Negombo, Gampaha, Kegalle, Kurunegala, Kandy, Avissawella, Ratnapura, Badulla, and Anuradhapura.
District Courts
District Courts are the Courts of first instance for civil cases. District Courts have jurisdiction over all civil cases not expressly assigned to the Primary Court or a Magistrate’s Court.
Sri Lanka has 54judicial districts. Every District Court is a court of record and is vested with unlimited original jurisdiction in all civil, revenue, trust, insolvency and testamentary matters, other than issues that are assigned to any other court by law.
Certain specific civil issues handled by the District Courts include:
i. Cases related to ownership of land.
ii. Action by landlords to eject tenants
iii. Action to recover debts of more than Rs. 1,500.
iv. Action in connection with trademark and patent rights, and infringement of copyright laws.
v. Claims for compensation of more than Rs. 1, 500 for injuries caused by negligence.
vi. Divorce cases (Formerly, divorce cases were handled by the now defunct Family Courts).
Commercial disputes that are more than three million rupees in monetary value fall within the purview of the High Court in Colombo, the administrative capital, in accordance with the High Court of the Provinces (Special Provisions), Act No. 10 of 1996.
Magistrate’s Courts
Each Judicial division has one Magistrate’s Court, and there are 74 judicial divisions in Sri Lanka.
Each Magistrate’s Court is vested with original jurisdiction over criminal offenses (other than offenses committed after indictment in the High Court.)
In cases involving criminal law, the Magistrate’s Courts and the High Court are the only Courts with primary jurisdiction. The respective domains of these Courts are detailed in the Code of Criminal Procedure.
Appeals from these courts of first instance may be made to the Court of Appeal and, under certain circumstances, to the Supreme Court, which exercises final appellate jurisdiction.
The vast majority of the nation’s criminal cases are tried at the Magistrate’s Courts level, which forms the lowest level of the judicial system.
Cases may be initiated at a Magistrate’s Court by any police officer or by anyone else making an oral or written complaint to the Magistrate. The Magistrate is empowered to make an initial investigation of the complaint, and to determine whether his or her Court has proper jurisdiction over the matter, whether the matter should be tried by the High Court, or whether the matter should be dismissed.
Primary Courts
Each Primary Court is vested with the following jurisdictions:
i. Original civil jurisdiction over cases involving debt, damages, demands, or claims that do not exceed Rs. 1,500.
ii. Enforcement of by-laws by local authorities and disputes relating to recovery of revenue by these local authorities.
iii. Exclusive criminal jurisdiction over cases relating to offenses “prescribed” by regulation by the Justice Minister.
iv. Offenses in violation of the provisions of any Parliamentary Act, or subsidiary legislation, that is related to jurisdiction vested in the Primary Courts.
The Primary Courts are established under the Judicature Act, No.2 of 1978.
There are seven Primary Courts: One each in Anamaduwa, Angunukolapelessa, Kandy, Mallakam, Pilessa,Wellawaya and Wennappuwa.
In all other divisions, the Magistrate’s Court exercises the jurisdiction of the Primary Courts.
Other Courts and Tribunals
The other courts include the Kathi Court, the special tribunal that adjudicates on matrimonial matters relating to Muslims. Buddhist ecclesiastical matters that fall under the purview of the Buddhist Temporalities Ordinance of 1931 are heard by the ordinary courts. Disciplinary matters pertaining to Buddhist clergy are handled by religious councils which are under the authority of the Buddhist priests themselves.
There are numerous administrative tribunals, such as the Inland Revenue Board of Appeal, The Workmen’s Compensation Tribunals, Labor Tribunals, the Board of Appeal under the Factories Ordinance, Tribunals under Agricultural Productivity Law, Labor Tribunals under the Wages Board Ordinance, etc.
Most decisions of these tribunals can be appealed at the Court of Appeal; when regarding a substantial question of law, the decision of the Court of Appeal may be taken up at the Supreme Court. |
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