Introduction to Law and Legal System in Sri Lanka

By Maxwell RanasingheB.Sc. ( Business Administration) Hons. MAAT,

Attorney at Law, CPM ( New Haven- USA) MSLIM, Practicing Marketer

I know the law?• “ A set of rules to regulate behavior of people in a given society at a given

time”• “Dos and Do not s”• Hobbes- ‘ law is an obligatory rule of conduct. The commands of him or

them that have coercive power”• Salmond; ‘ 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 ; Drinking alcohol on poya days, not

giving room in a bus to an elderly, unmarried couple living together

• Who has created laws• Evolved in the society by custom, convention,

religion, beliefs etc. • 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• It has become a regulatory device in controlling

the conflicting social interest

• What ever it is, 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 has been home for many communities for

along 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

• 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 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 in to 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• It was in operation in the North Kingdom by

the time portuguese came to SL. The sources of this law traces to customs and laws used by dravidians in Malabar Coast and Coromendel 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 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. Portuguese and Dutch recognised it as a separate law. Still its is applicable as a personal law for Muslims especially in marriages, divorces etc.

• The influence of Western laws and legal systems to SL• Maritime provinces were acquired by Portuguese in

1505• By that time well establish legal system was in

operation. 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

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 locals 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 SL

• The British Influence 1796 to 1948• 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 SL.

• Currently the general law applicable to SL are English Laws, R & D law and the statue 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

• Kandyan law is applicable only to Kandyan Sinhalese, Thesawalamai is applicable to Tamils living in Jaffna and Muslim law for all Muslims living in SL.

• 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- alleged person named as accused- courts are different, procedure different, proof beyond reasonable doubt e.g.. Robbery, hurt, rape, death, fraud etc .

• The offence should be stated in a written law such as the Penal Code, Exchange control Act , Customs Ordinance etc as an offence 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 SLSupreme Court

Appeal Court

High Court/ Provincial High Court

Primary

Court

Labour

Tribunal

Agrarian

Services Commissioners Tribunal

s

Magistrate Court

s

District Court

• Supreme Court – The constitution of SL 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 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.

• Supreme Court is the Highest Court in SL and it has the final appellate jurisdiction, matters relating constitutional affairs, Fundamental rights, Consultative jurisdiction, Election Petitions, hear any breach of parliamentary priviledges, any matter that parliament may refer ( refer Article 1118 t 136 of SL Constitution)

• Appeal Court- 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 first instance, tribunal or other judicial institution.

• It has power to affirm, reverse, correct or modify any order, judgment or decree or sentence given by above institutions

• It also has power to grant injunctions and writs etc. ( refer article 137 to 147 of SL Constitution)

• 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 trails 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 SL 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, labour 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 Rs. 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 inquires into commission

of offences.• 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 , 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 has power to imprison or impose penalties as prescribed by law• When alleged offence seems not be a one traible 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 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. 1500.00

• 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 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 main stream court system. The intention was to make things easy and settle disputes early. Reduce the work load of courts etc.

• Mediation Boards- The mediation Boards Act of 1995 and subsequent amendments govern this mediation aspects.

• The Minister has power to set up Mediation Boards and set the areas that will come under such mediation boards.

• Commercial mediations are reality now in SL.• 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 action against employers.• Agricultural Tribunals established under the Agrarian Services Act of 1979

enables settling disputes as to cultivation and related matters.• Read Judicature Act , Constitution of Sri Lanka , Books on Legal System about

Sri Lanka for further details. Visit website of Minisrty of Justice as well to get current information