Resident Legal Advisor, Sri Lanka

Sri Lanka: Legal Research and Legal System By Aquinas V. Tambimuttu Aquinas V. Tambimuttu, a native of Sri Lanka, has an M.L.I.S. from San Jose State University, San Jose, California, an M.A. in English from Santa Clara University, Santa Clara, California, and .

The International Bar Association asserted: The most crippled arm of government under the Constitution was undoubtedly the judiciary.

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SLR - Vol.1, Page No - COURT OF APPEAL Kuruppu vs. Keerthi Rajapaksa, Conservator of Forests C.A. /78 - M.C. Panadura Forest Ordinance Section 24 Regulation 5 made thereunder

During his or her tenure, the selected attorney will work closely with local law enforcement and government officials, including prosecutors, judges, parliamentarians, and others to develop and carry out the justice sector assistance program.

We are seeking a current Department of Justice attorney. To qualify for this position, applicants must possess ALL of the requirements below: Applicants should have a thorough understanding and practical knowledge of DOJ and other USG approaches and policies involving transnational crimes, terrorism, and security and justice sector development issues, including training and institution-building.

The successful applicant should also have: The Application Package must be received by Except where otherwise provided by law, there will be no discrimination because of color, race, religion, national origin, political affiliation, marital status, disability physical or mental , age, sex, gender identity, sexual orientation, genetic information, status as a parent, membership or non-membership in an employee organization, on the basis of personal favoritism, or any other non-merit factor.

The Department of Justice welcomes and encourages applications from persons with physical and mental disabilities. The Department is firmly committed to satisfying its affirmative obligations under the Rehabilitation Act of , to ensure that persons with disabilities have every opportunity to be hired and advanced on the basis of merit within the Department of Justice. This agency provides reasonable accommodation to applicants with disabilities where appropriate.

If you need a reasonable accommodation for any part of the application and hiring process, please notify the agency. Determinations on requests for reasonable accommodation will be made on a case-by-case basis. Outreach and Recruitment for Qualified Applicants with Disabilities: Appeals against judgments, sentences and orders of the High Court other than judgments, sentences and orders delivered at a Trial-at-Bar , are heard by at least two judges of the Court of Appeal. Parliamentary election petitions are heard by the President of the Court of Appeal, or by a judge of the Court of Appeal nominated by the President of this Court, or by more judges of the Court of Appeal nominated by the President of this Court, of whom the President of the Court may be one.

Other issues before the Court may be heard by a single judge of the Court of Appeal. If the Court hearing a case consists of two judges and they fail to agree on a decision, the issue is reviewed by three judges of the Court of Appeal. As of October , Court of Appeal cases from through are accessible online.

See section on Cases, Bills, and Acts. The appointment of Court of Appeal judges requires the same procedure as that for the appointment of Supreme Court judges see earlier section on the Supreme Court.

The age of retirement for Court of Appeal judges, however, is 63, as opposed to 65 for Supreme Court judges. The removal from office of a Court of Appeal judge requires the same procedure as that for the removal of a Supreme Court judge, with the President of the Republic addressing Parliament and a majority of the Members of Parliament, including those not present in Parliament, supporting the removal See the three paragraphs preceding the final sentence in the Supreme Court section.

While some High Court trials will have a jury, some trials will not have a jury. Also, the Attorney-General has the authority to determine whether a case that does not fall into a category provided in the Second Schedule of the Judicature Act No. The Penal Code stipulates the types of cases argued in a High Court: And the Code of Criminal Procedure Act. The High Court is composed of not less than ten and not more than forty judges. This Court sits in 16 provinces in the country 16 High Courts.

The High Court of each province exercises: Original jurisdiction over prosecution of offenses committed within a particular province. Admiralty jurisdiction, which is usually exercised in Colombo, the capital city. Jurisdiction to hear cases involving attempts to influence the outcome of a decision made, or an order issued, by the Judicial Service Commission.

This jurisdiction is vested by Article L 2 of the Constitution. Writ jurisdiction in respect to powers exercised 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. The Provincial High Court sits in the following cities: Judges of the High Court are appointed by the President of the Republic on the recommendation of the Judicial Service Commission, and in consultation with the Attorney-General.

The President of the Republic, acting on the advice of the Judicial Service Commission, exercises authority in disciplinary matters concerning the High Court judges.

The age of retirement for High Court judges is District Courts are the Courts of first instance for civil cases. Sri Lanka has 54 judicial districts. Every District Court is a court of record and is vested with unlimited original jurisdiction in all civil, revenue, trust, insolvency and testamentary matters, other than issues that are assigned to any other court by law.

Certain specific civil issues handled by the District Courts include: Cases related to ownership of land. Action by landlords to eject tenants. Action to recover debts of more than Rs. Action in connection with trademark and patent rights, and infringement of copyright laws. Claims for compensation of more than Rs. Divorce cases Formerly, divorce cases were handled by the now defunct Family Courts. Commercial disputes that are more than three million rupees in monetary value fall within the purview of the High Court in Colombo, the administrative capital, in accordance with the High Court of the Provinces Special Provisions , Act No.

There is a standard form of plaint for each type of action, and if necessary, there may be variations to the form. The normal procedure is for the filing of a plaint by the plaintiff. The plaint is argued before a District Court judge, and if the judge is satisfied that all matters are in order, an order may be issued to serve summons, along with a copy of the plaint, on the defendant s.

The defendant appears in court on the summons returnable date. The defendant, or his or her lawyer, is provided with a date by which an answer to the plaint is required. Further pleadings may be filed, especially if the defendant files a counter-claim, a claim in reconvention.

The counter-claim, if any, must relate to the issue brought before the District Court by the plaintiff. The above procedure is the normal procedure at the District Court.

The retirement age for District Court judges, generally, is 60 years. The respective domains of these Courts are detailed in the Code of Criminal Procedure. Appeals from these courts of first instance may be made to the Court of Appeal and, under certain circumstances, to the Supreme Court, which exercises final appellate jurisdiction. The Magistrate is empowered to make an initial investigation of the complaint, and to determine whether his or her Court has proper jurisdiction over the matter, whether the matter should be tried by the High Court, or whether the matter should be dismissed.

At the trial, the accused has the right to call and cross-examine witnesses. Trials are conducted without a jury, and the verdict and sentence are given by the Magistrate. Any party in a case who is in disagreement with a judgment has the right to appeal the judgment, on any point of law or fact, at the Court of Appeal. If a new offense is codified by law, for instance the Prevention of Terrorism Act , the relevant statute will indicate the manner of trial.

A fine of up to Rs. Magistrates are appointed by the Judicial Service Commission JSC , and the Commission exercises disciplinary oversight over the judges, including the power of dismissal See section on High Courts for information on the Judicial Service Commission. Each Primary Court is vested with the following jurisdictions: Original civil jurisdiction over cases involving debt, damages, demands, or claims that do not exceed Rs.

Enforcement of by-laws by local authorities and disputes relating to recovery of revenue by these local authorities. Offenses in violation of the provisions of any Parliamentary Act, or subsidiary legislation, that is related to jurisdiction vested in the Primary Courts. There are seven Primary Courts: Requests for revision of orders made by a Primary Court are handled by the High Court in that province.

Generally, the retirement age for Primary Court judges is 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 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. Most decisions of these tribunals can be appealed at the Court of Appeal; when regarding a substantial question of law, the decision of the Court of Appeal may be taken up at the Supreme Court. The principle of stare decisis is adhered to in Sri Lanka.

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 , when a new Constitution became effective in Sri Lanka, decisions of the Supreme Court before , and the decisions of the Privy Council when this Council in the U.

As of October , Supreme Court cases from through , and Court of Appeal cases from through are accessible online here.

Access this link and then scroll down to the Asia section and select the Sri Lanka link. There also is a link at this site for Sri Lanka legislation. The legislation-link, however, may not download quickly. 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. Usually, it takes a while for the Acts, Bills, Forms, Gazette, and News links to appear on the top left corner.

The major codifications are: The Code of Civil Procedure: Act 79 of Amended by Acts 9 of and 34 of Amended by Penal Code amendment Act of Code of Criminal Procedure: Code of Criminal Procedure Act. Chapter 26, Law 15 of Reynolds and Arturo A.

The conglomeration of different laws led to British colonial judges 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 applicability 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 in force along with Roman-Dutch law, in addition to indigenous laws such as Kandyan, Thesavalamai and Muslim Law. Roman-Dutch Law now generally applies in Sri Lanka when statutes and indigenous laws do not regulate the issue in question. Roman-Dutch Law represents in Sri Lanka an inherited legal tradition. In fact, when the British themselves declared Roman-Dutch law as the common law of Ceylon, Roman-Dutch law assumed even greater importance under the British than it had enjoyed under Dutch rule of Ceylon.

Kandyan Law applies to ethnic Sinhalese whose 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 Kandyan Law does not apply to all Sinhalese who are now resident in the Kandyan provinces; however, Kandyan Law does apply to Kandyan Sinhala who now do not reside in the Kandyan provinces in central Sri Lanka.

Kandyan Law that remains applicable to Kandyan Sinhala in present day Sri Lanka relates to marriage, divorce, and interstate succession. Kandyan Sinhala who choose to marry under the Kandyan Act will be governed by Kandyan law in matters relating to marriage, divorce and interstate 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 General Law applies in other related issues such as alimony and child custody.

Kandyan Sinhala who choose to marry under the General Marriage Ordinance are governed by Roman-Dutch Law in matters relating to marriage, divorce, and interstate succession. This customary and personal law also applies to numerous Jaffna Tamils who no longer live in the Jaffna Peninsula. It is a commonly held belief among many in Sri Lanka that Thesawalamai applies only to Jaffna Tamils who reside in the Jaffna peninsula.

Suntheralingam [7] that Thesavalamai is a personal law that applies to Jaffna Tamils wherever they live in the country, and that it applies also to their movable and immovable property, wherever it is situated in the country.

The ruling also indicates that each case must depend on its own facts. The only Thesavalamai laws that are now applicable to Jaffna Tamils relate to property and interstate succession resulting from marriage. Thesavalamai, which was codified by the Dutch in , gained legal validity when the British enacted the Thesavalami Regulation No. Other relevant laws are Ordinance No. When a Muslim marries another Muslim, the bride and the groom do not have the option of getting married under the General Law, unlike in the case of Kandyan Sinhala.

Marriage, divorce and other related issues involving Muslims are governed by the Marriage and Divorce Muslim Act, no. Issues related to interstate succession and donations, involving Muslims, are dealt with under the Muslim Interstate Succession Ordinance No.

There is awareness now that these personal and customary laws based on ancient customs discriminate against women. As the Supreme Court pointed out in Sivagnanalingam v. The consent of the bride is irrelevant to the conclusion of the marriage contract. The efforts needed to revise these personal laws based on ancient customs, in order to remove any bias against the rights of women, are now hindered by the debate over minority rights in Sri Lanka: An authority on Sri Lankan law, H.

Tambiah, touches on the rich and complex nature of Sri Lankan 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. The treaty bodies of the United Nations have dealt in detail with the above mentioned personal laws in the country. The CESCR highlighted the impediments in the field of health, education and work when marriage was allowed at an early stage.

The CEDAW deplored the preference of men over women under the personal laws regarding inheritance and underscored their grievance regarding the plurality of legal systems and the lack of judicial review of pre-constitutional systems.

The Committee is also concerned about the plurality of legal systems composed of the general, customary and religious laws and the lack of choice for women between the different legal systems. The Committee further reiterates its concern at the fact that there is no opportunity for judicial review of legislation pre-dating the Constitution. 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.

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 Supreme Court is the highest and final court of record, and exercises final civil and criminal appellate jurisdiction. The Supreme Court has jurisdiction in respect of Bills and interpretation of the Constitution, final appellate matters, fundamental rights, sole jurisdiction in relation to Presidential Election Petitions, validity of referendums and breach of privileges of Parliament and consultative jurisdiction on matters referred to it by the Sri Lankan President.

Litigants who do not agree with a decision of the original court, be it civil, criminal, or Court of Appeal, may take the case before the Supreme Court, with permission from the Court of Appeal, or special permission from the Supreme Court. The Supreme Court, however, will only agree to consider cases involving a substantial legal issue. The Supreme Court is composed of a Chief Justice and not less than six, and not more than ten, other judges.

Cases that fall under the 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. 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.

This increase in the number of judges hearing a Supreme Court case would transpire especially if the issue under consideration is one of general and public importance. The Supreme Court is entrusted with certain exclusive jurisdictions. Subject to provisions in the Constitution, the Supreme Court exercises jurisdiction over constitutional matters and fundamental rights issues. Also, the Supreme Court exercises sole and exclusive jurisdiction over questions concerning the constitutionality of a parliamentary bill or a particular provision in the bill, subject to certain constitutional requirements.

The Supreme Court has the exclusive jurisdiction to hear and determine issues relating to the interpretation of the Constitution. The Supreme Court also has the sole and exclusive jurisdiction to hear and determine issues relating to the infringement of fundamental rights by Executive or Administrative action.

These fundamental rights include freedom of thought, conscience and religion; freedom from torture; right to equality; freedom from arbitrary arrest, detention and punishment; prohibition of retroactive penal legislation; and freedom of speech, assembly, association and movement.

The Constitution provides for temporary restrictions on fundamental rights if national security issues are involved. The Supreme Court also exercises consultative jurisdiction. If the President of the Republic deems that a question of law or fact that has arisen is of such a nature and of such public importance, the President may refer the question directly to the Supreme Court for an opinion. 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.

When the Speaker, subject to specific requirements in the Constitution, refers the allegations to the Supreme Court, the Court is required to report its findings to the Speaker within two months. The Supreme Court then reports its determination, and the reasons for its determination, to the Parliament.

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. 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. As of October , Supreme Court cases from through are accessible online. See the section on Cases, Bills and Acts. Article 41C was introduced by the 17th Amendment to the Constitution which became effective on October 3, The Constitutional Council established under the 17th Amendment had powers to select30 members to independent commissions and approve nominees of the President in respect of other appointments, viz.

Therefore, the 17th Amendment to the Sri Lankan Constitution 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. The power to appoint persons to key public offices has been absolutely vested in the President and the Parliamentary Council is only a body without actual power, only if the President requests such observation.

The International Commission of Jurists noticed back then: 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. The 19th Amendment, however, rectified and changed a number of malpractices, among them the revival of Constitutional Council and the establishment of independent commissions.

An order of the President of the Republic is required to remove from office a Supreme Court judge, including the Chief Justice. 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.

In this context it is worth to elucidate the case of Ms. The impeachment motion against Ms. Bandaranayake that was debated by Parliament on the 10th and 11th of January Opposition MPs described the impeachment motion as flawed and therefore invalid. Bandaranayake was removed from office on the 13th of January after President Mahinda Rajapaksa ratified the impeachment motion passed by Parliament. The International Bar Association asserted: Standing Order 78A should also be repealed insofar as it is not already rendered void by these rulings , and consideration should be given to the creation of a disciplinary procedure for judges that is fully consistent with the Sri Lankan constitution, common law principles and international human rights law.

There is no absolutely fixed model that such a procedure must emulate. Bandaranayake was accused of a number of charges including financial impropriety and interfering in legal cases, all of which she denied. The impeachment followed a series of rulings against the government by the Supreme Court, including one against a bill proposed by Minister Basil Rajapaksa, President Rajapaksa's brother. Bandaranayake was replaced as chief justice by former Attorney General Mohan Peiris.

Peiris was considered an ally of President Rajapaksa and his appointment was seen by critics as further consolidation of power by the president and his family. Bandaranayake refused to recognize the impeachment and lawyer groups refused to work with the new chief justice.

Bandaranayake's controversial impeachment drew much criticism and concern from within and outside of Sri Lanka. In November , the then-United Nations Special Rapporteur on the independence of judges and lawyers, Gabriela Knaul, urged the Sri Lankan government to reconsider the impeachment and ensure that any hearing complies with "the fundamental principles of due process and fair trial".

At a press briefing on the 18th of January the then-United Nations High Commissioner for Human Rights Navi Pillay expressed deep concern about the impeachment which had "further eroded the rule of law in the country and could also set back efforts for accountability and reconciliation".

Pillay went on to describe the "flawed" impeachment as a "gross interference in the independence of the judiciary and a calamitous setback for the rule of law in Sri Lanka". Pillay also expressed doubts about the independence and impartiality of Bandaranayake's successor Mohan Peiris.

However, given the unconstitutional nature of the impeachment, Ms. Shirani Bandaranayake was reinstated in her office after the election of the new Sri Lankan President, Mr. The age of retirement for Supreme Court judges is 65 years. The Court of Appeal is the first appellate court for decisions of all original courts and certain Tribunals, established under Chapter XV of the current Constitution.

The Court of Appeal is composed of the President of the Court, and not less than six, and not more than eleven other judges. Many cases at the Court of Appeal are presided over by a single judge. The Court of Appeal hears appeals against judgments of the High Courts. It exercises appellate jurisdiction for the correction of errors in fact or in law at a High Court, or any Court of first instance, or Tribunal, or other Institution.

In addition to the jurisdiction to affirm, reverse, correct, or modify a judgment, the Court of Appeal may give directions to a Court of first instance, Tribunal, or other Institution, or order a new trial, or order additional hearings as the Court of Appeal deems appropriate. The Court of Appeal also has the authority to receive and admit new evidence additional, or supplementary, to evidence already recorded in a court of first instance.

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. The Court of Appeal also exercises the power to grant and issue, as provided by law, writs of certiorari, prohibition, procedento, mandamus, and quo warranto. The Court exercises jurisdiction to grant writs of habeas corpus in order to bring before the Court a person who has to be dealt with according to the law, or to bring before the Court a person illegally or improperly detained in public or private custody.

The Court of Appeal grants injunctions, and also exercises the jurisdiction to try petitions challenging the election of a Member of Parliament. The Court of Appeal sits in Colombo. The Chief Justice may direct that particular sittings of the Court be held in another judicial zone or district. Appeals against judgments, sentences and orders of the High Court other than judgments, sentences and orders delivered at a Trial-at-Bar , are heard by at least two judges of the Court of Appeal.

Parliamentary election petitions are heard by the President of the Court of Appeal, or by a judge of the Court of Appeal nominated by the President of this Court, or by more judges of the Court of Appeal nominated by the President of this Court, of whom the President of the Court may be one. Other issues before the Court may be heard by a single judge of the Court of Appeal.

If the Court hearing a case consists of two judges and they fail to agree on a decision, the issue is reviewed by three judges of the Court of Appeal. As of October , Court of Appeal cases from through are accessible online. See section on Cases, Bills, and Acts. The appointment of Court of Appeal judges requires the same procedure as that for the appointment of Supreme Court judges see earlier section on the Supreme Court.

The age of retirement for Court of Appeal judges, however, is 63, as opposed to 65 for Supreme Court judges. The removal from office of a Court of Appeal judge requires the same procedure as that for the removal of a Supreme Court judge, with the President of the Republic addressing Parliament and a majority of the Members of Parliament, including those not present in Parliament, supporting the removal See the three paragraphs preceding the final sentence in the Supreme Court section.

These High Courts have the authority to hear, try and determine all prosecutions on indictment. It is empowered to pass judgements with death sentences, life imprisonment and impose fines et. While some High Court trials will have a jury, some trials will not have a jury. Also, the Attorney-General has the authority to determine whether a case that does not fall into a category provided in the Second Schedule of the Judicature Act No.