Legal Research and Legal System in Sri Lanka

Ayomi Aluwihare and Shakthi Ratnakumaran are attorneys at law in F.J. & G. de Saram. F.J. & G. de Saram is a legal firm in Sri Lanka with practice areas of corporate and commercial law with experience of over 178 years.

1. Introduction

Sri Lanka, formerly under British colonial rule referred to as Ceylon, is a multi-ethnic and multi-lingual island. Sinhala and Tamil are the two official and national languages of Sri Lanka, whilst English is the link language.[1] As provided under Article 9 of the Constitution of the Democratic Socialist Republic of Sri Lanka (the “Constitution”),Buddhism, which is the faith practiced by approximately seventy percent (70%) of the population of Sri Lanka, is given prominence. However, Article 10 of the Constitution, acknowledges the need for religious pluralism and accordingly allows all citizens the freedom to practice any religion or belief. Apart from Buddhism, Religions such as Islam, Christianity and Hinduism are amongst the three most common faiths practiced.

Located in the Indian Ocean off the southern end of the Indian subcontinent, geological evidence suggests that the island was previously connected to the Indian mainland (connecting Talaimannar located in the Mannar District of Northern Province in Sri Lanka and Dhanushkodi located in Ramanathapuram District of the State of Tamil Nadu in India). What remains today is a chain of limestone shoals called Adam’s Bridge.

Sri Lanka is home to a population largely comprising of five ethnic groups; Sinhala, Tamil, Muslims, Burghers (a community of mixed European descent) and Veddhas (regarded as the aboriginal inhabitants of the country). The Sinhalese contribute to nearly three-fourths of the population. The Tamil population consists of two groups: Sri Lanka Tamils (long-settled descendants from southeastern India) and Indian Tamils (migrant workers from southern India, brought to Sri Lanka under British rule). A little more than one-eighth (1/8) of the total population belongs to the former group. Muslims, who trace their origin back to Arab traders of the 8th century, account for about seven and a half (7.5) percent of the population. Burghers and Veddhas, in total make up less than 1 percent of the population.

While Sinhalese inhabitants occupy most places in the Island, the Sri Lankan Tamils live predominantly in the Jaffna Peninsula and in the adjacent districts of the northern lowlands. Smaller agglomerations of this group are also found along the eastern littoral where their settlements are juxtaposed with those of the Muslims. The main Muslim population can be seen in in the eastern lowlands. In other areas, such as Colombo, Kandy, Puttalam, and Gampaha, Muslims form a small but important segment of the urban and suburban population. The Indian Tamils, the vast majority of whom are plantation workers, live in large numbers in the higher hill stations of the Central Highlands.

Among the principal ethnic groups, language and religion determine identity. While the mother tongue of the Sinhalese is Sinhala – an Indo-Aryan language – the Tamils speak the Dravidian language of Tamil. Again, while more than ninety (90) percent of the Sinhala population are Buddhists, both Sri Lankan and Indian Tamils are overwhelmingly Hindu. The Muslims are usually bilingual, with most speaking Tamil. Christianity draws its followers (about 7 percent of the population) from among the Sinhalese, Tamil, and Burgher communities.

Sri Lanka has remained a constitutional democracy since independence from British colonial rule in 1948. The basis of the legal system is the Constitution, which was promulgated as law in 1978 repealing the previous Constitution adopted and enacted in 1972. The Constitution permits amendments or repeal of its provisions, except for a few entrenched provisions, which requires a 2/3 majority of the parliament or a referendum. As of writing this article, the present Constitution has been amended nineteen (19) times.

The following sections of this article will highlight facets of the legal system and legal development against the above backdrop.

2. Colonial History and the Law

The arrival of the European powers paved the way for modernization of the country’s laws resulting in an amalgamation of different structures within the same legal system. Sri Lanka was colonized by three different foreign rulers over a period of four hundred (400) years. Each of them had their own unique approaches to law and governance on the island. This time can be broadly classified into three periods; the Portuguese from 1505-1658, the Dutch from 1658-1796 and the British from 1796-1948.

Prior to the arrival of the European powers in 1505, the country had varied laws, mostly catering to the different ethnic communities. Some of the notable laws during this period (although not codified at the time) were the Kandyan law, the Tesawalamai, the Muslim law and the laws of the Mukkuvars, the Chetties, the Parsees and the Paravars. The Kandyan law, in comparison to the rest, was more developed with an elaborate system reflecting the influence of “Buddhism, Hindu laws and customs, Sakyan and Mauryan customs, other Indian customs and various other laws and customs which the original Sinhalese [had] brought with them to Sri Lanka.”[2] The Tesawalamai was recognized as a law which was introduced to Sri Lanka by the Malabar immigrants from India and later modified by subsequent immigrants from India with strong influence of Hindu law. The Muslim law and the laws of the Mukkuvars, the Chetties, the Parsees and the Paravars, were also recognized at the time, as laws applicable to specific communities.

2.1. Impact of Colonialism on the Law

European control of what is now Sri Lanka began in 1505 with the Portuguese rule and continued for about a hundred and fifty (150) years thereafter. However, it is observed that the Portuguese rule has had no lasting effect on the laws and legal institutions of Sri Lanka.[3] The Portuguese, at the Malwana Convention of 1597, agreed to maintain and administer the laws and usages of the Sinhalese in the Maritime Provinces, which were maintained during their time. However, use of the Sinhala laws came with some degree of influence of the Portuguese. This is largely because the legal system was administered by foreign persons who were “unacquainted with the spirit of the laws and the customs of the people and had no inclination to study them.”[4]

The Portuguese were eventually ousted by the Dutch in 1956. However, the Dutch controlled far less land than the Portuguese. With the Dutch establishing their control over the island, primarily in the coastal regions, the judicial system of Sri Lanka underwent a series of changes as the Dutch introduced their own laws and set up a system of courts in the parts of Sri Lanka over which they exercised sovereignty. Roman-Dutch law gained prominence during this time and served as a foundation on which our current laws are built. In the words of Professor Anton Cooray, “Roman-Dutch law has withstood many a tide of legal and political change to remain as the foundation of Sri Lanka’s general and common law.”[5]

The Dutch judicial system was well organized. Three major courts of justice were established: one each in Colombo (west), Galle (south), and Jaffna (north). A circuit court, the Land Raad, presided over by a dissava, sat in various districts. Local chiefs sat in on cases involving local customs. Thus, the customary and personal laws that existed in the west, south and north of the country were also administered in the courts, and the Dutch law was made applicable where the laws were silent or when the local laws were considered to be inappropriate.[6]

By the 18th century, Roman-Dutch law was increasingly used in the south-west and the south of the country. Consequently, private property (land) rights spread rapidly in these areas, and property transfers were subject to Roman-Dutch law. The Dutch also made efforts to codify the customary law of the different ethnic groups. The Thesavalamai, the laws and customs of the Tamils of the Northern Jaffna province, was codified by the Dutch in 1707, and a code of Muslim law was applied with the consent of Muslim elders. These laws have been explained in detail in Section 3.1 of this article. The laws of the Sinhalese along with other minority groups were not codified. This could be attributed to the fact that Sinhalese inhabiting the central highlands of the country (known as the Kandyan kingdom) were not ruled by the Dutch. Thus, while the application of the laws of the Sinhalese in the coastal areas were affected by the Dutch rule, the laws of the Sinhalese in the Kandyan areas were not. [7]

The next and final foreign ruler of the island, the British, obtained entry into the country in 1796 by ousting the Dutch. The Treaty of Amiens temporarily ended hostilities between France and the United Kingdom, pursuant to which Ceylon was ceded to the British in 1801.[8]

For the first time in Sri Lankan history, with the fall of the Kandyan Kingdom in 1815, the entire country of Ceylon came under the rule of a single foreign power; the British. The British adopted a unitary administrative and judicial system for the entire country as a result of a decision to continue enforcing the existing laws of newly conquered or ceded British Colony[9]. This move led to Roman-Dutch law gaining a firm presence in the country along with the existing personal laws.

The British rule lasted through 1948, when Sri Lanka gained its independence.

2.2. Colebrooke-Cameron, Donoughmore and Soulbury Commissions

The British set up three different commissions to define their rule and determine the development of the country.[10] In 1829 the British Colonial Office sent a Royal Commission of Eastern Inquiry, the Colebrooke-Cameron Commission to assess the administration of the island. This Commission envisaged three key reforms: one of the most important reforms the commission undertook was to introduce an administrative system based on uniformity, thereby dividing the country into five provinces. The second reform was the decentralization of executive power in the government. Autocratic powers of the governor were removed, replacing his advisory council with an Executive Council, which included both official and unofficial nominees. The Executive Council inherited the power to appoint the members of the Legislative Council, which functioned as a marketplace of ideas on legislative matters. The Legislative Council participated in Sri Lankan membership; in 1833 three of the fifteen members were Sri Lankans. The governor nominated them to represent the low-country Sinhala, Burghers, and Tamils, respectively. Finally, the administrative services and civil service opened themselves to local citizens. These constitutional reforms were indeed revolutionary for any European colony at that time.

In 1927 a royal commission under the Earl of Donoughmore visited Sri Lanka to determine the country’s potential to eventually revert to self-rule and accordingly initiated several proposals to foster this ambition. The Donoughmore Commission introduced universal franchise in 1931 and the legislative branch of the government, the State Council which functioned in both an executive and legislative capacity. All of its seven committees performed executive duties and each committee consisted designated members of the State Council and was chaired by an elected Sri Lankan, who was addressed as minister. The Donoughmore Constitution, eventually, marked the beginning of the experimentation in participatory democracy.

In July 1944, Lord Soulbury was appointed head of the Soulbury Commission and entrusted with the function to draft a new, post-independent constitution. To this end, British constitutional parliamentary principles were used as a model for the Soulbury Constitution of independent Sri Lanka. The Soulbury Commission foresaw a parliamentary system with a bicameral legislature. Members of the first House of Representatives were directly elected by popular vote. Members of the Senate, or upper house, were elected partly by members of the House and partly by the governor general, who was primarily a figurehead. The British monarch appointed the governor general on the advice of the most powerful person in the Sri Lankan government-the prime minister.

3. Overview of the Legal Regime

This section of the article discusses the influence of the common and civil law systems on the legal regime of the country as of date, together with the indigenous laws and practices.

One of the ways by which English law influenced the legal system in Sri Lanka is by the introduction of statutes, wherein statutes passed by the Parliament of the United Kingdom were enacted as local law or the principles underlying the decisions of the English courts were codified and adopted as local law. English law was also adopted when it was incorporated by reference and where statutes based on English law were silent. It may also be noted that during the colonial period, the application of Acts of the Parliament of the United Kingdom were extended to Sri Lanka and English law was applied in respect of certain matters (such as the rules of the English prerogative law required for the exercise of sovereign authority of the Crown) as a result of the assumption of British sovereignty.

English law was also introduced into the Sri Lanka legal system by judicial activism where English law principles were adopted by judges. Sometimes, this was done in derogation of the Roman Dutch laws.[11] Kandyan Law as a personal law applies to Kandyan Sinhalese, the Thesavalamai Law is essentially customary law that is personal and territorial in character and applies specifically to Jaffna Tamils in the Northern province and the Muslim Law applies to the Muslims.

Various tests need to be satisfied if the personal laws mentioned above apply to the persons in question. However, Roman Dutch Law also finds its application in other aspects of life, as it is the Common Law of the country. The Common Law in the island nation underwent significant metamorphosis, as it was in a fluid state of aggregation, absorbing different aspects of law.

The conglomeration of different laws caused the British colonial judges to encounter some difficulties in ascertaining applicable laws, especially where Roman-Dutch law principles were expected to be followed. As a consequence, on many occasions British judges introduced principles of English law on the basis of ambiguity in the application of Roman-Dutch law. The lack of judicial precedents, and the un-codified nature of the laws, provided an excuse for judges to avoid applying Roman-Dutch law principles.

As a consequence, a body of English law principles was also in force along with Roman-Dutch law and other indigenous laws such as Kandyan, Thesavalamai and Muslim Law.

3.1. Personal Laws

As explained above, three customary legal regimes were codified and effectuated in Sri Lanka: Kandyan law, Thesavalamai law and the Muslim law, by the European powers which now constitute the personal laws governing three distinct ethnic groups.

Kandyan Law applies to ethnic Sinhalese, who can trace their lineage back to the Kandyan provinces during the period of the Kandyan monarchy in central Sri Lanka. The Kandyan monarchy ceased to exist with the British takeover of central Sri Lanka in 1815. This law is specific to those whose lineage can be traced back to this time and does not automatically become applicable to anyone residing in Kandy. The Kandyan law that remains applicable to Kandyan Sinhala in present day Sri Lanka relates to the subject matters of marriage, divorce, and intestate succession.

Kandyan Sinhalese could opt to be married under the Marriage and Divorce (Kandyan) Act (Chapter 113), or the General Marriage Ordinance (Chapter 112). Kandyan Sinhalese who choose to marry under the Kandyan Act are governed by Kandyan law in matters relating to marriage, divorce and intestate succession by virtue of the Kandyan Law Ordinance, as well as the Kandyan Matrimonial and Inheritance Ordinance. Kandyan laws on adoption are also applicable to those who marry under Kandyan Law. The relevant laws on this topic are mostly in the Kandyan Declaration and Amendment Ordinance (Chapter 71), and the Kandyan Marriages and DivorceAct. The General Law is made applicable to areas such as alimony and child custody where the Kandyan Law is silent. Kandyan Sinhalese who choose to marry under the General Marriage Ordinance are governed by Roman-Dutch Law in matters relating to marriage, divorce, and intestate succession.

Thesavalamai, which was codified by the Dutch in 1706, gained legal validity when the British enacted the Thesavalami Regulation No. 18 of 1806. Other relevant laws are Ordinance No. 5 of 1869, the Matrimonial Rights and Inheritance Ordinanceof 1911, amended by Ordinance No. 58 of 1947, The Thesavalamai Ordinance and Thesavalamai Pre-Emption Ordinance, and the Jaffna Matrimonial Rights andInheritance Ordinance No.1 of 1911.

Thesavalamai Law is based on ancient customs of Jaffna Tamils in Sri Lanka and it is both territorial and personal in character as it is applicable to all lands situated in the Northern province and it is applicable as a personal law to those Tamils who have an inhabitancy in the Northern province.

In 1988, the Supreme Court of Sri Lanka, in case of Sivagnanalingam v. Suntheralingam[12] ruled, that “Thesavalamai is a personal law that applies to the Tamil inhabitants of the Northern province irrespective of where they live or where their property, both movable and immovable is situated. The Supreme Court, overturning decisions of the lower courts, held that Thesavalamai would not apply to Tamil inhabitants of the Norther province only if there is “unequivocal evidence of abandonment of…inhabitancy in Jaffna.”

This Supreme Court ruling suggests that a Tamil inhabitant of the Northern province could live for decades in another part of the country and not lose “Jaffna inhabitancy” if he or she, for instance, continues to own property in the Northern province, or even visits the Northern province on a somewhat regular basis. The ruling also indicates that such a decision could only be made on a case-to-case basis.

The only Thesavalamai laws that are now applicable to Tamils of the Norther province are those that relate to property and intestate succession resulting from marriage.

In family-law-related issues, the Muslim Special Laws apply to all Muslims in Sri Lanka. When a Muslim marries another Muslim, the bride and the groom do not have the option of getting married under the General Marriage Ordinance, unlike in the case of Kandyan Sinhalese, as it specifically excludes the applicability of the provisions therein to the marriage of Muslims. Marriage, divorce and other related issues involving Muslims are governed by the Marriage and Divorce (Muslim) Act, no.13 of 1951, and any subsequent amendments.[13]

Issues related to intestate succession and donations, involving Muslims, are dealt with under the Muslim Interstate Succession Ordinance No. 10 of 1931, and any subsequent amendments.

3.2. Roman-Dutch Law

Persons subject to any of the three personal laws with regard to certain aspects, are governed in other respects by the Roman Dutch law, which is the residual common law of the country. Roman Dutch law generally applies in Sri Lanka when statutes and indigenous laws are silent on the issue. However, as elucidated below, the influence of English law on the common law of the country has had a greater impact than the Roman-Dutch law.

Roman-Dutch law assumed even greater prominence under the British than it had enjoyed under Dutch, due to its continued use under the British. The common law as we see today has been modified both expressly and by necessary implication by statute. It has also been influenced by the judicial ruling where English law was made applicable instead of the equivalent Roman-Dutch principle and by local customs and practice.[14] The influence of Roman-Dutch Law is found particularly in the areas of succession, persons, property and obligations. The Law of Delict which is the law governing civil wrong-doing today, is predominantly based on the Roman-Dutch Law. The only other country whose legal system is based on the Roman-Dutch system, is South Africa.

The modern sources of Roman-Dutch law are the treatises of the jurists and the cases decided by the Sri Lanka courts. The decisions of Dutch Courts are also occasionally cited in our courts.[15] Some of the frequently cited jurists are Voet, Grotius, Van der Linden, Van der Keessel and Van Leeuwen.[16] Statutes enacted by the Dutch are also used to a limited extent. However, as a general principle, only those enacted prior to 1656 (the Dutch occupied period) is made admissible, and any such statute passed after 1656 must conclusively prove that the statute was applied in Sri Lanka during the Dutch period to be made applicable. [17]

An authority on Sri Lankan law, H.W. Tambiah, touches on the rich and complex nature of the Sri Lankan legal system:

In Sri Lanka, there are five systems of private law. The Roman-Dutch law, as modified by statutes, and interpreted by the courts, is the general law of the land. English common law applies to commercial contracts and commercial property and has been tacitly accepted in many matters. English law was also introduced by statute and as such forms the statutory law of the land. The Thesvalamai is both a personal and local law…. Similarly, Kandyan Law applies to the Kandyan Sinhalese, and the Muslim laws, to the Muslims, in [matters relating to] marriage, divorce, [alimony] and inheritance. Private law governs issues between individuals. It consists of the law of persons, property, obligations, and delicts or torts.[18]

3.3. Criminal Law and Procedure

The criminal law and procedure in Sri Lanka are governed by the Penal Code (Chapter 19) and the Code of Criminal Procedure Act No. 15 of 1979. The rules of criminal law and procedure applied during the Dutch regime went through significant change after the establishment of the British rule in the country by express enactment and tacit judicial usage.[19] The Criminal Procedure Code, founded on the Indian Criminal Procedure Code of 1882 with some modifications necessitated by local conditions, was enacted in 1883. This was soon replaced by the Ordinance No. 15 of 1898, which remained in force until the Administration of Justice Law No. 44 of 1973 which brought about an entirely new system of courts in Sri Lanka.[20] The Penal Code, which was enacted in the year 1883, came into operation in the year 1885, and is still in operation to date. In 1979, the current Code of Criminal Procedure Act No.15 of 1979 was enacted.

3.4. Civil Law and Procedure

The Royal Charter of Justice of 1833 initially allowed the Supreme Court to make the rules required for the civil court, subject to the approval of Her Majesty the Queen as there were no statutes to regulate the procedure to be followed in the civil courts.[21] With the Administration of Justice Ordinance No. 11 of 1869, the administration of justice by the courts in the island were streamlined. The current Civil Procedure Code was enacted in 1889 to consolidate and amend the law relating to the procedure of the civil courts which was largely based on the earlier Indian Civil Procedure Code of 1877 and the Code of 1882, the Civil Procedure Code of New York of 1880 and the English Rules of Courts founded in 1883 and 1885 under the Supreme Courts of Jurisdiction Act.[22] Civil cases currently governed by the Civil Procedure Code, which shows the influence of Indian, English and American rules of procedure.

It is noteworthy to mention at this juncture that in addition to the Civil Procedure Code, there are various other enactments which deal with civil actions in Sri Lanka, some of which provide their own procedure, such as the Prescription Ordinance No. 22 of 187, the Mortgage Act No. 6 of 1949, the Partition Law No. 21 of 1977, the Rent Act No. 7 of 1972, the Primary Courts Procedure Act No. 44 of 1979, the Mediation Boards Act No. 72 of 1978, the High Court of the Provinces (Special Provisions) Act No. 2 of 1990 and the Companies Act No. 7 of 2007.[23] Some of these Acts will be explained in detail under various sections of this article.

3.5. Commercial Law

The commercial law of Sri Lanka is almost wholly based on the principles of English commercial law due to Sections 2 and 3 of the Civil Law Ordinance No. 5 of 1852 (Chapter 79), which authorizes the application of English law in maritime and commercial matters in Sri Lanka, unless there is a specific contrary provision in a statute of Sri Lanka.

Company law deals with the incorporation, control and management of corporations. Initially the Joint Stock Company Ordinance of 1861 governed the company law in Sri Lanka. Subsequently, the Companies Ordinance No. 51 of 1938 was enacted based on the English Companies Act of 1929. The Companies Act No. 17 of 1982 followed thereafter, based on the Companies act of 1948 of England. This law was in force until the current Companies Act No. 7 of 2007 came into force. All companies seeking to be incorporated and/or registered under the Act are required to submit certain documents with the Registrar General of Companies. Such records will be accessible by the public.

A company may be set up as a company limited by shares, unlimited company or a company limited by guarantee. In a company limited by shares, the liability of the shareholders, to contribute to the assets of the company is limited to the amount paid by them for shares of the company and in an unlimited company, the shareholders have unlimited liability to contribute to the assets of the company. In a company limited by guarantee, the liability of the members to contribute to the assets of the company is limited to that specified in the articles of association. A company limited by shares may be set up either as a private company or as a company limited by shares other than a private company.

A private company cannot offer shares or other securities to the public and can have a minimum of one shareholder and a maximum of fifty. The articles of association of a private company must include provisions setting out the abovementioned prohibition on offering shares and other securities to the public and the limit on the maximum number of shareholders. Unless the articles of association provide otherwise, a private company can be incorporated with a minimum number of one director.

A company whose articles of association do not provide for the aforementioned prohibition on offering shares and other securities to the public and the limit on the number of shareholders, is a public company. A public company can be incorporated with one shareholder and does not have a limit on the number of its shareholders. Unless the articles of association provide otherwise, the minimum number of directors required in a public company is two.

A company limited by guarantee must have articles of association which sets out the objects of the company and the amounts which each member of the company undertakes to contribute to the assets in the event of liquidation. Two or more persons can apply to form a company limited by guarantee by making an application to the Registrar General of Companies in a prescribed form signed by each of the initial members.

3.6. Foreign Exchange Law

The Defense (Finance) Regulations of 1939 were promulgated by the colonial administration introducing exchange controls for the first time to the country.[24] These regulations continued to be enforced until the time of independence. However, with the establishment of the Central Bank in the year 1950, the Exchange Control Act (Chapter 423) was enacted in the year 1953. Since 1977, there has been a gradual and focused relaxation of exchange controls.[25]

The recently enacted, Foreign Exchange Act No. 12 of 2017 provides for the promotion and regulation of foreign exchange and repealed the Exchange Control Act. Among other changes, the Foreign Exchange Act has decriminalized exchange control violations.

The Foreign Exchange Act inter alia sets forth restrictions on the acquisitions of shares by non-residents, in companies incorporated in Sri Lanka. The Minister of Finance may, by regulation published under him with the approval of the Cabinet of Ministers, (i) authorize a class or classes of capital transactions in foreign exchange and (ii) specify the limit up to which capital transactions may be authorized and the terms and conditions subject to which foreign exchange may be dealt with for such capital transactions.

Whilst general permission for investing in the shares of a company incorporated in Sri Lanka has been granted as of date, the following businesses have been excluded from such general permission:

• pawn broking
• coastal fishing, and
• retail trade where a capital contributed by persons’ resident outside Sri Lanka will be less than USD Five Million.

However, general permission granted in respect of such businesses, as detailed below limit investment to 40% of the shares of such company (unless approval of the Board of Investments of Sri Lanka is obtained):

• production of goods where Sri Lanka’s exports are subject to internationally determined quota restrictions.
• growing and primary processing of tea, rubber, coconut, cocoa, rice, sugar and spices.
• mining and primary processing of non-renewable national resources.
• timber-based industries using local timber.
• deep sea fishing (as defined by the Ministry assigned the subject of Fisheries).
• mass communications.
• education.
• freight forwarding.
• travel agencies.
• shipping agencies.

4. The Structure of the Courts System

The hierarchy of the Sri Lankan court system is set out in Section 2 of the Judicature Act No. 2 1978. This legally enshrined hierarchy sets out that primary courts, magistrate’s courts, district courts and high courts are courts of first instance, while high courts exercise appellate and review jurisdiction for limited and specific cases. Court of Appeal and Supreme Court are the Appellate Courts.

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.

Most 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.”[26]

At that time, “Parliamentarians constituted themselves as members of what was termed the ‘Constituent Assembly’ to draft and adopt a new Constitution,”[27] which became effective on May 22, 1972. There are also other courts such as the Kathi Courts that handle matrimonial disputes among Muslims, and numerous tribunals (see section on Other Courts).

The subsections that follow set out the evolutions and jurisdictions of the current courts of Sri Lanka, appellate courts (Supreme Court, Court of Appeal and High Courts), courts of first instance for criminal matters (Magistrates Courts and High Courts), courts of first instance for civil matters (District Courts and Small Claims Courts) and other forums for non-adversarial dispute resolution (Mediation and Arbitration) and other forums which have been established and granted jurisdiction under specific enactments such as the labour tribunal (Other Courts and Tribunals).

4.1. The Supreme Court

The Supreme Court is the highest and final court of record, and exercises final civil and criminal appellate jurisdiction and also exercises jurisdiction in respect of reviewing the executive and legislative actions against the Constitution and fundamental rights.[28] It also enjoys sole jurisdiction in relation to election petitions, validity of referendums and breach of privileges of Parliament and consultative jurisdiction on matters of public importance referred to it by the President of Sri Lanka or the Speaker of the Parliament.[29]

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.[30] The Supreme Court, however, will only agree to consider a case involving a substantial question of law.

The Supreme Court is composed of a Chief Justice and not less than six, but not more than ten, other judges.[31] Cases that fall under several jurisdictions of the Supreme Court are exercised, subject to provisions in the Constitution, by a bench of at least three judges of the Supreme Court.[32] Thus, different cases may be heard at the same time by several judges of the Supreme Court sitting apart.

The Constitution provides the Chief Justice with the authority to increase the number of Supreme Court judges hearing a particular case to five or more judges.[33] This increase in the number of judges hearing a Supreme Court case would transpire if the issue under consideration is one of general and public importance in the opinion of the Chief Justice.

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 also 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.

The consultative jurisdiction also extends to any concerns expressed by any Member of Parliament regarding the ability of the President to effectively discharge his or her duties. These concerns, in the first instance, would be addressed in writing to the Speaker of the House of Representatives by the member or members of Parliament. These concerns would be that the President is permanently incapable of discharging the functions of the office due to mental or physical frailty, or that the President is guilty of intentional violation of the Constitution, treason, bribery, misconduct or corruption involving the abuse of the powers of the Office of President, or any offense under any law involving moral turpitude.

Based on the report from the Supreme Court, the Parliament may vote to remove a President from office, subject to specific requirements in the Constitution.[34] The Supreme Court also exercises jurisdiction over legal issues related to the election of a President of the country, and legal issues surrounding a referendum. The Constitution stipulates that the foregoing two issues have to be determined by a bench of at least five Supreme Court judges, including the Chief Justice, unless the Chief Justice appoints another Supreme Court judge in his or her place. Legal issues surrounding any breach of privileges of Parliament by any person also fall under the purview of the Supreme Court.

Supreme Court cases are published in the Sri Lanka Law Reports. The age of retirement for Supreme Court judges is 65 years.[35]

4.2. Court of Appeal

The Court of Appeal is the first appellate court for correction of all errors in fact or in law in respect of decisions of all original courts, tribunals or other institutions by way of appeal, revision and restitutio integram.[36] The Court of Appeal is composed of the President of the Court of Appeal, and not less than six, and not more than eleven other judges.[37] Many cases at the Court of Appeal are presided over by a single judge.

In exercise of its jurisdiction to affirm, reverse, correct, or modify any order, judgment, decree or sentence, the Court of Appeal may give directions to a court of first instance, tribunal, or other institution, or order a new trial or additional hearings as the Court of Appeal deems appropriate.[38] “Even when there is no right of appeal from a particular court or tribunal, [the Court of Appeal] can exercise [its] powers of ‘revision’ and quash the original court’s or tribunal’s order [based on] an error of law apparent [in] the record.”[39] The Court of Appeal, if appropriate, also has the authority to issue injunctions, including a ‘stay order’ and suspend proceedings in a lower court until the revision application is heard and determined in order to prevent any irremediable mischief which might ensue.[40]

The Court of Appeal also has the authority to receive and admit new evidence, additional or supplementary, to evidence already recorded in a court of first instance to the extent relevant to the matters at issue in any original case, suit, prosecution or action, as the justice of the case may require.[41] The Court of Appeal, in exercising its power to examine and reverse a judgment of any court of first instance, has the authority to examine any record of any court of first instance.[42] The Court of Appeal also exercises the power to grant and issue, as provided by law, writs of habeas corpus, certiorari, prohibition, procedendo, mandamus, and quo warranto.[43] The Court of Appeal also exercises the jurisdiction to try petitions challenging the election of a Member of Parliament[44].

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.

The Court of Appeal sits in Colombo. The Chief Justice may direct that particular sittings of the Court be held in other judicial zones or districts.[45] The age of retirement for Court of Appeal judges, however, is 63.[46]

4.3. High Courts

The High Court exercises original criminal jurisdiction along with the Magistrate’s Court (explained below in 5.4.).[47] All indictments filled at a High Court are conducted by the State (Sri Lanka) are through the Attorney General’s Department.[48] The Attorney General’s Department prosecutes on behalf of the State. These High Courts have the authority to hear, try and determine all prosecutions on indictment. It is empowered to pass judgements imposing any sentence or other penalty prescribed by written law, including death sentences, life imprisonment and impose fines.[49] A High Court inter alia has jurisdiction in regard to offences committed aboard aircrafts and within the territorial air space.[50]

A High Court trial can either be by the High Court Judge alone or with a jury. The types of cases wherein an accused could opt for a trial by a jury are provided in the Second Schedule of the Judicature Act No.2 of 1978 and incudes offences like murder.[51] It can also hold a Trial-At-Bar where three judges nominated by the Chief Justice sit in judgment on a case by case basis.[52]

Pursuant to the Judicature (Amendment) Act No. 9 of 2018, a permanent High Court consisting of three judges of the High Court nominated by the Chief Justice was required to be established in every High Court to hear and determine prosecutions on indictment against any person in respect of financial and economic offences specified in the Sixth Schedule thereto.[53] The number of such courts of the Permanent High Court at Bar can be prescribed by an order published in the Gazette. The Attorney General or the Director General for the Prevention of Bribery and Corruption (when directed by the Commission to Investigate Allegations of Bribery or Corruption[54]) can refer such cases to the Chief Justice to determine whether proceedings should be instituted in the Permanent High Court at Bar. Unlike in the case of Trials at Bar, the Permanent High Court at Bar will be a permanent bench established to hear the cases referred to it. The High Court is composed of not less than ten and not more than one hundred and ten judges.[55]

Additionally, by virtue of the 13th Amendment to the Constitution, appellate and revisionary jurisdiction were extended to the Provincial High Courts in respect of cases that have been tried by Magistrate Courts and Primary Courts (both explained below in 5.4).[56] A High Court is required to be established in every province of the country. Accordingly, the High Court of each province exercises:

• Original criminal jurisdiction over prosecution of offenses committed within a particular province.[57]
• Admiralty jurisdiction, which is usually exercised in Colombo, the capital city.[58]
• Commercial jurisdiction, which is vested by the High Court of the Provinces (Special Provisions) Act, No. 10 of 1996.
• Jurisdiction to hear cases involving attempts to influence the outcome of a decision made, or an order issued, by the Judicial Service Commission.[59] This jurisdiction is vested by Article 111 L (2) of the Constitution.
• Applications for the return of, or access to, a child, under the Hague Convention, is handled by the High Court of the Western Province (Civil Aspects of International Child Abduction Act, No:10 of 2001).
• Appellate jurisdiction over convictions, sentences, and orders imposed by the Magistrate’s Courts and Primary Courts within the province.[60]
• Writ jurisdiction in respect to powers exercised within that province under any law or statutes enacted by the Provincial Council of that particular province, with regard to an issue delineated in the Provincial Council List.[61]
• Appeals of decisions reached by Labor Tribunals, Agrarian Tribunals, and Small Claims Courts.[62]

The age of retirement for High Court judges is 61.[63]

4.4. District Courts

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 or authority by law. District Courts have jurisdiction over all civil cases except for those expressly assigned by virtue of the provisions of any other enactment allowing original jurisdiction to any other court or vested in any other authority.[64]

Actions can be instituted in a District Court within the local limits whose jurisdiction, the defendant resides, the cause of action arose, the contract sought to be enforced, was entered into and / or the land subject to the dispute is situated.[65] No court of first instance can entertain an action inter alia in respect of moveable or immovable property or a debt, damage or for the recovery of monies of a sum which less than Sri Lanka Rupees Five Hundred Thousand (Rs. 500,000) unless the matter has first been referred to mediation.[66]

Foreign judgments sought to be enforced in Sri Lanka also come within the jurisdiction of the District Courts, subject to the provisions of the Reciprocal Enforcement of Judgments Ordinance No. 41 of 1921. Accordingly, applications can be made to the District Court for enforcement of judgments obtained in the specified courts therein (which includes the High Court in England and Northern Ireland), provided it is not contrary to public policy in Sri Lanka. However, in respect of judgements of courts other than the specified courts, regular action would have to be instated in the appropriate court, which may lead to a full trial and appeals thereafter.

Every judicial district of Sri Lanka is required to have a District Court.[67] The right to appeal in respect of judgments for any error in fact or in law may be preferred to the Court of Appeal, whilst in the case of an order made by the District Court, an appeal can be preferred to the Court of Appeal for the correction of any fact or in law, with the leave of the Court of Appeal.[68] Thereafter, a right of appeal to the Supreme Court from such order of the Court of Appeal exists.[69]

The retirement age for District Court judges, generally, is 60 years.

4.5. Magistrate’s Courts

In cases involving criminal law, the Magistrate’s Courts and the High Court are the only Courts with primary jurisdiction.[70] The respective domains of these Courts are detailed in the Penal Code and the Code of Criminal Procedure.

Every judicial district in Sri Lanka is required to have a Magistrate’s Court.[71] Appeals from these courts of first instance may be made to the Court of Appeal[72] and, under certain circumstances, to the Supreme Court, which exercises final appellate jurisdiction. Cases may be initiated at a Magistrate’s Court inter alia by any police officer or by anyone else making an oral or written complaint to the Magistrate.[73] If a new offense is codified by law, for instance the Prevention of Terrorism Act, the relevant statute will indicate the manner of trial.

The Magistrate’s Courts are ordinarily empowered to impose sentences of a fine of up to Sri Lanka Rupees One Thousand Five Hundred (Rs. 1,500.00), two years of rigorous or simple imprisonment, and/or whipping, unless special provisions under any law vest the Magistrate’s Courts with the power to impose higher penalties.[74]

The retirement age for Magistrate’s Court judges, generally, is 60 years.

4.6. Small ClaimsCourts

Small Claims Courts are the lowest courts of original jurisdiction and are empowered to hear all actions in which the debt, damage, or demand does not exceed such sum as may be specified by the Minister by an order published in the Gazette.[75] The Small Claims Courts are established under the Judicature Act, No.2 of 1978 and it requires be a Small Claims Court to be established in each judicial district of Sri Lanka.[76]

Any person dissatisfied with the final judgement of the Small Claims Court in any action, proceeding or matter or an order having the effect of a final judgment, may appeal to the High Court with the leave of the Small Claims Court or where such leave is refused, with the leave of the High Court.[77]

Generally, the retirement age for Primary Court judges is 60.

4.7. Commercial High Court

The High Court for the Western Province is vested with exclusive jurisdiction in respect of some specified commercial matters in terms of the High Court of the Provinces (Special Provisions) Act, No. 10 of 1996 and is commonly referred to as the Commercial High Court. The Western Provincial Commercial High Court is vested with Provincial jurisdiction in respect of the following matters with effect from 11th of October 1996:

• All actions where the cause of action has arisen out of commercial transactions including causes of action relating to banking, export or import of merchandise, services affreightment, insurance, mercantile agency, mercantile usage, and the construction of any mercantile document in which the debt, damage or demand is for a sum exceeding Rs.20 Million.[78]
• All applications and proceedings under sections 31, 51, 131, 210 and 211 of the Companies Act No. 17 of 1982 i.e., actions to relieve a Company of the consequences of non-compliance with the conditions constituting it a private company – s.31, actions to make irregular allotments void and actions to recover loss, damage or costs incurred as a result of such irregular allotments – s. 51; actions for a Court to order a meeting of a Company to be held as specified where compliance with the Articles of the Company or the provisions of the Companies Act is impracticable – s.131; applications complaining against oppression in the conduct of the affairs of a company – s.210; applications complaining of mismanagement – s. 211.
• All proceedings under the Code of Intellectual Property Act No. 52 of 1979 other than proceedings required to be taken in terms of this Act in the District Court of Colombo. This Court however will not have jurisdiction in respect of actions instituted under the Debt Recovery (Special Provisions) Act No.2 of 1990.

The Commercial High Court will have jurisdiction in respect of the aforementioned matters where the defendant/defendants resides/reside or the cause of action has arisen or the contract sought to be enforced was made or the registered office of the Company is situated within the Western Province.

The appeals against the orders and judgments of this Court can be made directly to the Supreme Court for any error in fact or in law.[79]

4.8. Mediation

Mediation is one of the alternate dispute resolution methods available in Sri Lanka.

The Mediation Boards Act No. 72 of 1988, established several mediation boards in various areas Sri Lanka. A Commission appointed under this Act appoints a panel of mediators who have been vested with power to mediate on any dispute arising wholly or partly within a particular mediation board area, where the State, a public officer or the Attorney General is not involved as a party.[80] The mediation boards are required to bring the disputants to an amicable settlement and to remove, with their consent, the real cause of grievance between them so as to prevent a recurrence of the dispute and offence.

Additionally, certain actions are required to be subject to mediation prior to being referred to a Court of first instance (as explained about in District Courts) including cases in relation to movable or immovable property, debt, damage or demand which does not exceed Rs.500,000/- in value, matters not specified in the third schedule to the said Act or offences failing within those specified in the second schedule to the Act. A certificate of non-settlement would have to be obtained in respect of such actions prior to being referred to Court of first instance.

Sri Lanka signed the United Nations Convention on International Settlement Agreements Resulting from Mediation, also known as the Singapore Convention in August 2019. This treaty is expected to strengthen the international dispute resolution framework and provide businesses greater certainty and assurance and help facilitate international trade and commerce and also provide for the enforcement of mediated settlement agreements across countries.[81] However, as explained in section 6.2 below, enabling legislation must be drafted and implemented to facilitate compliance by Sri Lanka with the international obligations which has not been implemented as of date.

4.9. Arbitration

Arbitration is another mode of non-adversarial dispute resolution, for which there exists a legal framework in Sri Lanka. Until 1995, the conduct of arbitration proceedings based on reference made by the parties was governed by the provisions of the Arbitration Ordinance of 1866 and the Civil Procedure Code. With the enactment of the Arbitration No. 11 of 1995 to give effect to the New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards of 1958, the Arbitration Ordinance and the relevant provisions of the Civil Procedure Code were repealed and replaced.

The Arbitration Act provides a comprehensive infrastructure for resolving commercial disputes, domestic as well as international, through arbitration. The Arbitration Act is based on the United Nations Commission on International Trade Law (UNCITRAL) Model Law on International Commercial Arbitration. An application for recognition or enforcement of an arbitral award – local or foreign – may in terms of the Arbitration Act be made to the appropriate High Court within one year after the expiry of 14 days of the making of the award.[82] As a signatory to the New York Convention on the International Enforcement of Arbitration Awards of 1958, awards made in Sri Lanka are also enforceable in other signatory countries and vice versa.

If a party to an arbitration agreement institutes legal proceeding in a Court against another party to such agreement in respect of a matter agreed to be submitted to arbitration in such an agreement; the Court will have no jurisdiction to hear and determine such matter if the other party objects to the Court exercising jurisdiction in respect of such matter.[83] Courts in Sri Lanka usually uphold, and will not interfere with and intervene in, the agreement between the parties to submit disputes arising out of or in connection with the transaction documents to resolution by arbitration in accordance with the terms of the arbitration agreement.

Sri Lanka has several established institutional arbitration centers and the Institute for the Development of Commercial Law and Practice (ICLP) a corporate body established in 1992, under the Companies Act No.17 of 1982 of Sri Lanka is one among them. ICLP is the only arbitration institution in Sri Lanka which administers arbitrations under its own set of rules.

4.10. 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, Rent Board of Review, Rent Boards, Ceiling on Housing Property Board of Review, Land Acquisition Board of Review, Quazis and Boards of Quazis, Agricultural Tribunals, Court Martials, which perform functions of a quasi-judicial nature. Their decisions are subject to revision by the Appellate Courts by way of writs or appeals as provided by the various enactments by which each of these Tribunals have been established. The decision of the Court of Appeal may be taken up at the Supreme Court.

5. Legal Practitioners

The Supreme Court of Ceylon was authorized by the Charter of 1833 to admit and enroll as Advocates and Proctors, persons of good repute and of competent knowledge and ability, upon examination by one or more of the judges of the Supreme Court. Following this, two groups of legal practitioners, advocates and proctors, were admitted to the Sri Lankan legal system until the Administration of Justice Law No. 44 of 1973 came into operation in 1974, when the two groups of practitioners were combined to form one group of practitioners referred to as ‘Attorneys-at-law’. Thereafter, to practice law in Sri Lanka, one must be admitted and enrolled as an Attorney-at-Law of the Supreme Court of Sri Lanka.

After the enactment of the aforementioned law, both advocates and proctors who were previously admitted under the old law, were considered to Attorneys-at-law for all purposes. However, there exists an informal distinction in the two groups of practitioners to date, on the basis of their work, like those attorneys engaged in the practice of courtroom advocacy and litigation, and those other attorneys engaged in other kinds of legal work.

6. Significant Constitutional Features

6.1. Independence of the Judiciary

In discussing the independence of the judiciary in Sri Lanka, it is relevant to consider the seventeenth, eighteenth and nineteenth amendments to the Constitution. Accordingly, the seventeenth amendment introduced in the year 2001 sought to curb the powers of the office of the executive presidency which inter alia included the appointments of judges to the two highest courts of the country, i.e. Court of Appeals and the Supreme Court.[84]

The seventeenth Amendment provided that the President’s selection and appointment of a Supreme Court judge requires the approval of the Constitutional Council, which is composed of the Prime Minister, the Speaker of the Parliament, the Leader of the Opposition in Parliament, a nominee of the President, five persons appointed by the President who were nominated by both the Prime Minister and the Leader of the Opposition, and one person selected by the majority of Members of Parliament belonging to political parties or independent groups not affiliated with the political parties or groups of the Prime Minister or Leader of the Opposition.

The Constitutional Council’s approval was not required if the appointment was for a period of less than 14 days. Further, the Constitutional Council established under the seventeenth Amendment had powers to select 30 members to independent commissions and approve nominees of the President in respect of other appointments, viz. the Chief Justice and Supreme Court Judges, the President of the Court of Appeal and the Judges of the Court of Appeal, the Judicial Service Commission, Attorney General, Solicitor General, Auditor General, Supreme Court and Court of Appeal Judges, Inspector General of Police, the Parliamentary Commissioner for Administration (Ombudsman) and the Secretary-General of Parliament.

In this manner, the seventeenth amendment put in place a system of checks and balances to ensure that the power vested in the Executive by the people through the Constitution is subject to scrutiny. It also gave confidence to the officials of the public service and the police, to carry out their duties without fear and upholding the rule of law, as a result of which merit and performance were sought to be recognized as key factors in making appointments to top positions in the state and political victimization was reduced.

However, in the year 2010, the eighteenth amendment to the constitution was introduced which diluted the aforementioned aspects of checks and balances introduced by establishing a new Parliamentary Council which advised on such judicial and other appointments, to the extent that the powers of the new Parliamentary Council was not comparable to the Constitutional Council established under the seventeenth Amendment. The power to appoint persons to key public offices was absolutely vested with the President and the Parliamentary Council was only a body which provided observation upon the request of the executive President. The International Commission of Jurists noticed back then:

In 2010, the 18th Amendment to the Constitution was passed by Sri Lanka’s Parliament. It abolished the Constitutional Council and created an ineffective Parliamentary Council, empowering the President to directly appoint key public service posts and the superior judiciary, including the Chief Justice, the President and Judges of the Court of the Appeal and those members of the Judicial Service Commission (JSC) other than its Chairman which is ex officio, the Chief Justice. The JSC is the body entrusted with the power to appoint, promote, transfer exercise disciplinary control and dismiss judicial officers of the subordinate courts. The result was a significant erosion of the independence and impartiality of the Sri Lankan judiciary.[85]

Thereafter, the nineteenth amendment passed in the year 2015, however, reversed some of the changes brought about by the eighteenth amendment, including the revival of Constitutional Council[86] and the establishment of independent commissions.[87]

Therefore, appointments to independent commissions, including the Election Commission can only be made by the executive president on the recommendation of the Constitutional Council.[88] The nominees of the executive president to hold the office Chief Justice, judges of the Supreme Court, the President and judges of the Court of Appeal, the members of the Judicial Service Commission (“JSC”) and the Attorney-General can be made only with the approval of the Constitutional Council.[89]

An order of the Executive President of the Republic is required to remove from office a Supreme Court judge, including the Chief Justice or the president of the Court of Appeal and every other judge of the Court of Appeal.[90] The President’s order for removal of a judge is preceded by the President addressing the Parliament on the relevant issues surrounding the “proved misbehavior, or incapacity,” that necessitates the removal of the judge from office. The removal of a Supreme Court judge requires the support of a majority of the Members of Parliament, including those members not present in Parliament at the time of the vote.

The Speaker of the Parliament will agree to the President’s address to Parliament if not less than one-third of the Members of Parliament sign a notice of the resolution in support of the President’s address to Parliament. The notice of the resolution will provide the full particulars of the alleged “misbehavior or the incapacity.”

The judges of the High Courts are appointed by the President of the Republic on the recommendation of the JSC, and in consultation with the Attorney General.[91] The Executive President, acting on the advice of the JSC, exercises authority in disciplinary matters concerning the High Court judges. The President may remove a High Court judge on the recommendation of the JSC. The judges of the District Courts, Magistrates’ Courts and Small Claims Courts are appointed by the JSC, which is also vested with the power of dismissal of the judges.[92]

6.2. Status of International Law

Sri Lanka has had three constitutions that governed the country since its independence in 1948. None of them contained any specific provision setting out the relationship between domestic and international law. However, public law at the time of independence was an outcome of English Law: despite the rapid changes generated and propelled through globalization, suspicion persisted regarding international law: this might be contributed to the concept of parliamentary sovereignty. In any case, as Prof. Dr. Deepika Udugama writes in a recent article, it seems that there is a firm recognition by the judiciary and political system that the post-colonial legal system was and is dualist.[93]

In this context, the 1978 Constitution of Sri Lanka considers international law as relevant in some instances. Article 157 states that where the Parliament by a resolution passed by not less than two-thirds of the Members of Parliament (including those not present) approves as being essential for the development of the national economy, any treaty or agreement between the Government of Sri Lanka and the Government of any foreign State for the promotion and protection of the investments in Sri Lanka of such foreign State, such treaty or agreement will have the force of law in Sri Lanka and other than for reasons of national security, no written law can be enacted in contravention of such provisions of the treaty of agreement. Accordingly, it is common for double taxation treaties signed between the Government of Sri Lanka and foreign States to be approved and enforced in this manner.

Article 27 of the Constitution of the Democratic Socialist Republic of Sri Lanka, 1978, which sets out the Directive Principles of State policy to be adhered to in the enactment of laws and governance of Sri Lanka, has in sub-article (15) stated that the State shall “endeavor to foster respect for international law and treaty obligations in dealings among nations.”

While in the case of Leelawathie v Minister of Defence and External Affairs[94]the Supreme Court held the view that the Universal Declaration of Human Rights cannot be applied in the domestic setting as it is not a legal instrument that can establish its role as a part of domestic law, the common law jurisdictions had veered off this approach in the years since, particularly in human rights cases.[95] The Courts in Sri Lanka also reflected this inclination towards monism in the subsequent and more recent decisions of Sepala Ekanayake v AG,[96] Weerawansa v AG,[97] and Tikiri Banda Bulankulame v Ministry for Interior Development.[98]

However, in the case of Singarasa v. Attorney General Case [99] the Supreme Court found that while the Sri Lankan government had ratified the International Covenant on Civil and Political Rights, the rights cannot be directly invoked when there is lack of domestic implementation. This judgment, while there several other problematic issues to be addressed, spells out the shift towards dualism despite the existence of favorable precedents.

6.3. Right to Information Act

The nineteenth amendment to the Constitution of the Democratic Socialist Republic of Sri Lanka, 1978, in the year 2015, also introduced a right to of access to information to every citizen (which includes a body corporate if not less than three fourths of the shares are held by citizens) as provided for by an enactment, in relation to information required for the exercise or protection of a citizen’s rights, held by the State, a Ministry, Government Department or statutory body under any law or any statute of a provincial council or any local authority or any other person in possession of information relating to the aforementioned institutions.[100]

Accordingly, the Right to Information Act No. 12 of 2016 was enacted to further the right granted under Article 14A and to foster a culture of transparency and accountability in public authorities by giving effect to the right of access to information as a means of combating corruption and promoting accountability and good governance.

Right to Information Commission, a statutory body is the entity responsible for the overseeing and enforcement of the provisions of the Act.[101] The members of the Commission are appointed by the Executive President on the recommendation of the Constitutional Council.[102]

Once a request is made by a citizen (or body corporate, as the case may be), the information requested for is required to be given within 14 days, unless the request concerns the life and personal liberty of a citizen, in which case the request should be responses to within 48 hours.[103]

If the information provided is unsatisfactory, an appeal can be made to the same relevant designated officer, and thereafter the Commission.[104]

7. Sources of Law

7.1. The Constitution

The Constitution is the paramount law of the land; it enshrines the rule of law and the separation of powers and recognizes the sovereignty of the people.

7.2. Statutes

Legislation enacted by the supreme legislative authority is one of the most important sources of law. In Sri Lanka, legislation may take the form of one of three types – (a) regulations and proclamations issued by the Governors between 1801 and 1833, (b) Ordinances which were passed by the colonial legislatures of Ceylon between 1833 and 1947, and (c) Acts which have been passed by the Parliament after 1948. All laws passed before 1978 remain valid through Article 168 of the 1978 Constitution.

Following the thirteenth amendment to the Constitution, Provincial Councils have the power to make statutes applicable to the Province for which it is established, with respect to any matter set out in List I of the Ninth Schedule to the Constitution, subject to the provisions in the Constitution.[105]

Acts and Bills of Parliament, when available for publication, are published in the Extra Gazette. The Acts and Bills links are at the top left corner of this site. After accessing the Acts or Bills link, select the “E” link for English. The “S” link is for the Sinhala language version, and the “T” link is for the Tamil language version.

7.3. Subordinate Legislation

Subordinate legislation, which is also referred to as delegated legislation, is legislation issued by a body or authority which is empowered by primary legislation to enact such secondary legislation. Rules, regulations, orders issued by Ministers and government officials under and in terms of primary legislation and bylaws enacted by local authorities are examples of subordinate legislation. These are usually available on the official websites of the relevant ministry or the relevant regulating authority established for such purpose or the local authority. For example, the laws enacted by the Ministry of Environment are available on the website of the Central Environmental Authority, whilst some of the by-laws of the Western Provincial Council are available on the website of the Western Provincial Council Secretariat.

7.4. Judicial Precedent

The doctrine of judicial precedent recognizes that “different cases must be decided the same way, if the material facts are the same.”[106] Accordingly courts are bound by the principles established in earlier decisions. The Sri Lanka legal system, having been influenced by English law, adheres to the principle of stare decisis. Supreme Court decisions are binding on all other courts. A decision of the Court of Appeal is binding on the courts of first instance, if the decision is not in conflict with a decision of the Supreme Court. Since 1978, when a new Constitution became effective in Sri Lanka, decisions of the Supreme Court before 1978, and the decisions of the Privy Council when this Council in the U.K. was the final Court of Appeal for Sri Lanka, are technically no longer binding. But the earlier case law may still serve as “guidance,” and the word “guidance” suggests that the earlier case law is much closer to binding evidence than to persuasive evidence.

Supreme Court and Court of Appeal cases now are published in the Sri Lanka Law Reports and New Law Reports. As of October 2008, Supreme Court cases from 1878 through 2005, and Court of Appeal cases from 1809 through 2005 are accessible online via the CommonLII (Common Legal Information Institute – Asia). Daily orders and judgments of the Supreme Court and Court of Appeal from the year 2011 onwards can also be accessed at the official websites.

Other case law can be found online at the below mentioned links:

• LawNet
• WorldLii
• Attorney General of Sri Lanka
• Refworld

7.5. Textual Precedent

In systems of law which derive from Roman law, the opinions of writers are of significance. Accordingly, the opinions of the writers on Roman-Dutch law are considered authoritative in Sri Lanka.

7.6. Customs

“Legal custom can be distinguished from social custom by the fact that in the former sanctions are more certain in their operation.”[107] A distinction must however be made between local custom and general customs. Local customs are those rules which are observed in a particular trade or in a certain locality. These are recognized and enforced by court, although court would require the satisfaction of a prerequisite of validity before they take cognizance of the relevant local custom.[108] Cooray notes that general custom “is not regarded as a custom’ since it applies to all persons and would form the basis of the common law of the country.”[109]

---

[1] Articles 18 and 19 of the Constitution of the Democratic Socialist Republic of Sri Lanka, 1978.

[2] L.J.M. Cooray, An Introduction to the Legal Systems of Sri Lanka (1972),page 2.

[3] L.J.M. Cooray, The Reception of Roman-Dutch Law in Sri Lanka, The Comparative and International Law Journal of Southern Africa, 7(3), (1974), page 1.

[4] L.J.M. Cooray, An Introduction to the Legal Systems of Sri Lanka (1972),page 4.

[5] A. Cooray, Oriental and Occidental Laws in Harmonious Co-existence: The Case of Trusts in Sri Lanka, Electronic Journal of Comparative Law, 12.1, (2008), page 2.

[6] L.J.M. Cooray, The Reception of Roman-Dutch Law in Sri Lanka, The Comparative and International Law Journal of Southern Africa, 7(3), (1974), page 295.

[7] L.J.M. Cooray, The Reception of Roman-Dutch Law in Sri Lanka, The Comparative and International Law Journal of Southern Africa, 7(3), (1974), page 2.

[8] L.J.M. Cooray, The Reception of Roman-Dutch Law in Sri Lanka, The Comparative and International Law Journal of Southern Africa, 7(3), (1974), page 2.

[9] Campbell v. Hall, [1558-1774] All ER Rep 252.

[10] M.U. de Silva, Administration of Original Jurisdiction under British Rule in Sri Lanka:1796-1845, Journal of the Royal Asiatic Society of Sri Lanka, 54 (2008), page 184.

[11] L.J.M. Cooray, An Introduction to the Legal Systems of Sri Lanka (1972), page 38.

[12] (1988) 86 SLR 1.

[13] T. Nadaraja, The Legal System of Ceylon in its Historical Setting (1972), page 119.

[14] L.J.M. Cooray, The Reception of Roman-Dutch Law in Sri Lanka, The Comparative and International Law Journal of Southern Africa, 7(3), (1974), page 2.

[15] L.J.M. Cooray, The Reception of Roman-Dutch Law in Sri Lanka, The Comparative and International Law Journal of Southern Africa, 3(7), page 3.

[16] L.J.M. Cooray, The Reception of Roman-Dutch Law in Sri Lanka, The Comparative and International Law Journal of Southern Africa, 3(7), page 3.

[17] Samed v. Segutamby (1924) 25 NLR 481 as cited in, L.J.M. Cooray, The Reception of Roman-Dutch Law in Sri Lanka, The Comparative and International Law Journal of Southern Africa, 7(3), (1974), page 3.

[18] H.W.Tambiah. Sri Lanka, in Encyclopedia of Comparative Law: National Reports, ed. Victor Knapp, (1987) pages 129- 130.

[19] G.L. Peiris, Criminal Procedure in Sri Lanka (1999), page 1.

[20] G.L. Peiris, Criminal Procedure in Sri Lanka (1999), pages 2-3.

[21] A. Majeed, A Commentary on Civil Procedure Code (2012), page 21.

[22] A. Majeed, A Commentary on Civil Procedure Code (2012), page 22.

[23] A. Majeed, A Commentary on Civil Procedure Code (2012), page 31.

[24] B.D.W.A. Silva, Foreign Exchange Transactions from Controls to Relaxation, 60th Anniversary Commemorative Volume of the Central Bank of Sri Lanka: 1950 – 2010.

[25] B.D.W.A. Silva, Foreign Exchange Transactions from Controls to Relaxation, 60th Anniversary Commemorative Volume of the Central Bank of Sri Lanka: 1950 – 2010.

[26] Dayanath C. Jayasuriya. Sri Lanka, in Legal Systems of the World: A Political, Social, and Cultural Encyclopedia, ed. Herbert M. Kritzer, IV(S-Z), (2002) page 1528.

[27] Dayanath C. Jayasuriya. Sri Lanka, in Legal Systems of the World: A Political, Social, and Cultural Encyclopedia, ed. Herbert M. Kritzer. IV(S-Z), (2002) page 1528.

[28] These fundamental rights include freedom of speech and expression including publication, peaceful assembly, association, form and joint a trade union, manifest religion or belief in worship, promotion of ones’ own culture and use of language, engage in lawful occupation, movement and return to Sri Lanka.

[29] Article 118 of the Constitution of the Democratic Socialist Republic of Sri Lanka, 1978.

[30] Article 128 of the Constitution of the Democratic Socialist Republic of Sri Lanka, 1978.

[31] Article 119 of the Constitution of the Democratic Socialist Republic of Sri Lanka, 1978.

[32] Article 132(2) of the Constitution of the Democratic Socialist Republic of Sri Lanka, 1978.

[33] Article 132(3) of the Constitution of the Democratic Socialist Republic of Sri Lanka, 1978.

[34] Article 38(1)(e) of the Constitution of the Democratic Socialist Republic of Sri Lanka, 1978.

[35] Article 107(5) of the Constitution of the Democratic Socialist Republic of Sri Lanka, 1978.

[36] Article 138 of the Constitution of the Democratic Socialist Republic of Sri Lanka, 1978.

[37] Article 137 of the Constitution of the Democratic Socialist Republic of Sri Lanka, 1978.

[38] Article 139(1) of the Constitution of the Democratic Socialist Republic of Sri Lanka, 1978.

[39] Ruana Rajepakse, An Introduction to Law in Sri Lanka (1989), page 26.

[40] Article 143 of the Constitution of the Democratic Socialist Republic of Sri Lanka, 1978.

[41] Article 139(2) of the Constitution of the Democratic Socialist Republic of Sri Lanka, 1978.

[42] Article 145 of the Constitution of the Democratic Socialist Republic of Sri Lanka, 1978.

[43] Articles 140 & 141 of the Constitution of the Democratic Socialist Republic of Sri Lanka, 1978.

[44] Article 144 of the Constitution of the Democratic Socialist Republic of Sri Lanka, 1978.

[45] Article 146 of the Constitution of the Democratic Socialist Republic of Sri Lanka, 1978.

[46] Article 107(5) of the Constitution of the Democratic Socialist Republic of Sri Lanka, 1978.

[47] Sections 10 &11 of the Penal Code (Chapter 19).

[48] Article 169(9) of the Constitution of the Democratic Socialist Republic of Sri Lanka, 1978.

[49] Section 13 of the Penal Code (Chapter 19).

[50] Section 9 of the Judicature Act No. 2 of 1978.

[51] Section 11 of the Judicature Act No. 2 of 1978.

[52] Section 12 of the Judicature Act No. 2 of 1978.

[53] Section 12A of the Judicature Act No. 2 of 1978.

[54] Established under section 2 of the Commission to Investigate Allegations of Bribery or Corruption Act, No. 19 of 1994

[55] Section 4 of the Judicature Act No. 2 of 1978.

[56] Article 154P of the Constitution of the Democratic Socialist Republic of Sri Lanka, 1978.

[57] Article 154P(3)(a) of the Constitution of the Democratic Socialist Republic of Sri Lanka, 1978.

[58] Section 13 of the Judicature Act No. 2 of 1978.

[59] Article 111L(2) of the Constitution of the Democratic Socialist Republic of Sri Lanka, 1978.

[60] Article 154P(3)(b) of the Constitution of the Democratic Socialist Republic of Sri Lanka, 1978.

[61] Article 154P(4) of the Constitution of the Democratic Socialist Republic of Sri Lanka, 1978.

[62] Section 3 of the High Court of the Provinces (Special Provisions) Act, no 19 of 1990.

[63] Section 6 of the Judicature Act No. 2 of 1978.

[64] Section 19 of the Judicature Act No. 2 of 1978.

[65] Section 9 of the Code of Civil Procedure (Chapter 105).

[66] Section 7 of the Mediation Boards Act No. 72 of 1988.

[67] Section 5 of the Judicature Act No. 2 of 1978.

[68] Section 25 of the Judicature Act No. 2 of 1978.

[69] Section 37 of the Judicature Act No. 2 of 1978.

[70] Section 2 of the Judicature Act No. 2 of 1978.

[71] Section 5 of the Judicature Act No. 2 of 1978.

[72] Section 320 of the Code of Criminal Procedure (Chapter 26).

[73] Section 136 of the Code of Criminal Procedure (Chapter 26).

[74] Section 14 of the Code of Criminal Procedure (Chapter 26).

[75] Section 24 of the Judicature Act No. 2 of 1978.

[76] Section 5 of the Judicature Act No. 2 of 1978.

[77] Section 26 of the Judicature Act No. 2 of 1978.

[78] Notification published by way of Extraordinary Gazette No. 2112/33 on 28th February 2019 read with Paragraph 1 of the First Schedule of the aforementioned Act.

[79] Section 5 of the High Court of the Provinces (Special Provisions) Act, No. 10 of 1996.

[80] Section 6 of the Mediation Boards Act No. 72 of 1988.

[81] Website of the Ministry of Foreign Affairs of Sri Lanka, last visited on 26th August 2020.

[82] Section 31 of the Arbitration No. 11 of 1995.

[83] Section 5 of the Arbitration No. 11 of 1995.

[84] C.R. de Silva, A Recent Challenge to Judicial Independence in Sri Lanka: The Issue of the Constitutional Council in The Culture of Judicial Independence (2011), page 377.

[85] International Commission of Jurists, Authority without Accountability, The Crisis of Impunity in Sri Lanka, (2012), page 4.

[86] Which now comprises of the following 7 Members of Parliament and 3 eminent persons:

(i) 3 ex officio members (namely, the Speaker of Parliament, the Prime Minister and the Leader of the Opposition in the Parliament);

(ii) 4 Members of Parliament (namely, 1 appointed by the Executive President, 2 appointed by the Executive President on the nomination of both the Prime Minister and the Leader of Opposition and 1 nominated by the agreement of the majority of the Members of Parliament belonging to political parties or to independent groups);

(iii) 3 eminent persons (independent persons of eminence and integrity nominated by the Prime Minister and the Leader of Opposition).

[87] Sugeeswara Senadhira, Towards a Progressive Constitution, Daily News (August 25, 2020).

[88] Article 41B of the Constitution of the Democratic Socialist Republic of Sri Lanka, 1978.

[89] Article 41C of the Constitution of the Democratic Socialist Republic of Sri Lanka, 1978.

[90] Article 107(2) of the Constitution of the Democratic Socialist Republic of Sri Lanka, 1978.

[91] Article 111 of the Constitution of the Democratic Socialist Republic of Sri Lanka, 1978.

[92] Section 6 of the Judicature Act No. 2 of 1978.

[93] Uduguma, Deepika, The Politics of Domestic Implementation of International Human Rights Law, (2015), pages104-169.

[94] (1965) 68 NLR 487.

[95] M. Sornarajah, The Reception Of International Law In The Domestic Law Of Sri Lanka In The Context Of The Global Experience, Sri Lanka Journal of International Law, 25, (2016-2017), page 33.

[96] (1988) 1 SLR 47.

[97] (2000) 1 SLR 387.

[98] (2000) 3 SLR 243.

[99] 2 SC Spl (LA) No.182/1999 (2006).

[100] Article 14A of the Constitution of the Democratic Socialist Republic of Sri Lanka, 1978.

[101] Sections 11 & 14 of the Right to Information Act No. 12 of 2016.

[102] Section 12 of the Right to Information Act No. 12 of 2016.

[103] Section 25 of the Right to Information Act No. 12 of 2016.

[104] Sections 31 & 32 of the Right to Information Act No. 12 of 2016.

[105] Article 154G of the Constitution of the Democratic Socialist Republic of Sri Lanka, 1978.

[106] L.J.M. Cooray, An Introduction to the Legal Systems of Sri Lanka (1972),page 2.

[107] L.J.M. Cooray, An Introduction to the Legal Systems of Sri Lanka (1972),page 189.

[108] L.J.M. Cooray, An Introduction to the Legal Systems of Sri Lanka (1972), page 190.

[109] L.J.M. Cooray, An Introduction to the Legal Systems of Sri Lanka (1972),page 190.