Session 07 Alternative Dispute Resolution PDF

Unit V – OSU4404 Session 07: Alternative Dispute Resolution Session 07 Alternative Dispute Resolution. Contents Introduction 7.1 Alternative dispute resolution Mechanisms. 7.2 Identifying the Advantages and Disadvantages of Alternative dispute settlement mechan...

Unit V – OSU4404 Session 07: Alternative Dispute Resolution Session 07 Alternative Dispute Resolution. Contents Introduction 7.1 Alternative dispute resolution Mechanisms. 7.2 Identifying the Advantages and Disadvantages of Alternative dispute settlement mechanisms. 7.3 Facilitation 7.4 Mediation 7.5 Arbitration Introduction All individuals as well as organisations have the right to submit their complaint before a court of law in Sri Lanka. Therefore, the court system of Sri Lanka has the primary authority for settling any disputes. On the other hand, there are alternative dispute settlement mechanisms which oriented towards reaching an agreeable settlement between the parties based on the principles of compromise and achieving the best outcome for both parties. This session provides a brief understanding of alternative dispute settlement mechanisms. This session intends to give an understanding on the different types of dispute settlement mechanisms in our country. This session is aimed at non-law students and as a result, is written in an easy-tounderstand and accessible style. 65 Copyright © 2023, The Open University of Sri Lanka (OUSL) Unit V – OSU4404 Session 07: Alternative Dispute Resolution 7.1 Alternative dispute Settlement mechanisms Alternative dispute resolution procedures are processes for resolving conflicts that are not available through a court-based litigation process. Litigation is 'adversarial,' which means that two opposed parties argue out their opposing arguments in front of a judge, and the judge's decision is final. Alternative conflict resolution processes, on the other hand, are aimed at obtaining an agreeable settlement between the parties based on compromise principles and getting the best outcome for both sides. The most commonly utilized alternative dispute resolution techniques in Sri Lanka include facilitation, mediation, and arbitration. Activity 7.1 1. What is the meaning of ADS (Alternative dispute settlement)? 2. Identify the methods of ADS in Sri Lanka 7.2 Identifying the Advantages and Disadvantages of alternative dispute settlement mechanisms. Alternative dispute resolution processes, such as arbitration, mediation, and negotiation, have significant advantages and disadvantages when compared to traditional litigation. Here are the key benefits and drawbacks of alternative conflict resolution processes. Advantages- Flexibility and Informality: Alternative dispute resolution techniques allow parties greater procedural and formality flexibility. They enable parties to adjust the process to their individual requirements, which can be very useful in complex or specialised conflicts. Because these techniques are informal, they frequently foster a less hostile and more collaborative environment, enabling greater communication and problem-solving. 66 Copyright © 2023, The Open University of Sri Lanka (OUSL) Unit V – OSU4404 Session 07: Alternative Dispute Resolution 66 Time and Cost Efficiency: One of the major benefits of alternative conflict resolution systems is their ability to save time and money. Litigation can be a time-consuming and costly process, comprising numerous court hearings, legal procedures, and the accompanying expenditures. Arbitration and mediation, on the other hand, often have shortened procedures that allow for faster resolution. Parties can also save money on court costs and significant legal counsel. Expertise and Neutrality: Many alternative dispute resolution processes allow parties to select an arbitrator, mediator, or expert in the topic relevant to their issue. This allows individuals to benefit from the skills and specialised knowledge of specialists who have dealt with similar issues in the past. Furthermore, mediators and arbitrators are expected to be objective and neutral, resulting in a more equitable dispute settlement procedure. Privacy and Confidentiality: When opposed to court action, alternative dispute resolution procedures frequently provide greater privacy and confidentiality. Confidentiality restrictions can prevent sensitive material from becoming public record, protecting the parties' reputations and commercial interests. This is especially important in cases involving trade secrets, intellectual property, or very sensitive commercial affairs. Disadvantages- Limited Legal Remedies: While alternative dispute settlement mechanisms can be effective in resolving disputes, they may not provide the same range of legal remedies as a court. Courts can issue binding judgements, enforceable orders, and remedies such as injunctions. Parties may choose the predictability and enforcement powers associated with court action over the more flexible outcomes given by alternative procedures in some situations. Lack of Formal Legal Process: For certain parties, the informality that might be favourable in alternative dispute resolution procedures can also be a disadvantage. The lack of strict legal procedures, evidence norms, and official hearings may raise questions about due process and fairness. This is especially important in cases involving fundamental rights or complex legal challenges. Limited Appellate Rights: In court, parties normally have the ability to appeal an unfavourable judgement, giving a higher court the option to review and potentially overturn the decision. However, most alternative conflict resolution procedures have only limited or no appeal rights. This might be detrimental if a party believes that a legal or procedural error occurred during the dispute resolution process. 67 Copyright © 2023, The Open University of Sri Lanka (OUSL) Unit V – OSU4404 Session 07: Alternative Dispute Resolution Enforcement Issues: While alternative dispute resolution processes frequently provide means for enforcing judgements or settlements, issues may occur when enforcing awards or settlements across various jurisdictions. In contrast to court judgements, which often have broader enforceability, the enforceability of arbitration awards or mediated settlements may be subject to international treaties, domestic legislation, and variable recognition and enforcement practises among countries. As a result, it is critical to recognise that the suitability of alternative dispute resolution procedures is determined by the nature of the disagreement, the parties involved, and their individual aims and preferences. In some circumstances, a mix of alternative dispute resolution approaches and court litigation may be the most effective way to resolve issues. 7.3 Facilitation Facilitation (or group facilitation) is a process that is 'facilitated' by a neutral person to assist a group in working more effectively together to achieve an agreed end. A facilitator is a person who plans and executes the event meeting of the organization to achieve its goal or purpose. A facilitator's function is to assist parties in designing meetings that are compatible with the meeting's goal and are founded on the assumption of equality and fairness. The notion is that no one person should be allowed to dominate a discussion or have special treatment over the other parties. In Sri Lanka, facilitation can be utilised instead of or in conjunction with court processes. The facilitator, who is often a qualified professional, leads the participants through a structured and moderated discussion, urging them to identify their interests, consider potential solutions, and work towards a settlement. The facilitator does not make choices or impose solutions, but rather supports the participants in reaching a mutually accepted conclusion. 7.4 Mediation Mediation is a voluntary conflict resolution method in which the parties appoint a neutral third party (the mediator) to help them negotiate a resolution to their disagreement. The mediator is frequently a specialist in 68 the subject matter of the conflict and has no decision-making authority. They assist the parties in reaching an acceptable agreement and aid to 68 Copyright © 2023, The Open University of Sri Lanka (OUSL) Unit V – OSU4404 Session 07: Alternative Dispute Resolution guarantee that all parties have an equal opportunity to participate in reaching a resolution. Mediators are appointed by the five-member Mediation Boards Commission, which is chaired by a retired Superior Court Judge. They are chosen from among community members based on demonstrated aptitude. Aptitude is assessed through training courses that teach mediation skills and techniques. The training courses are led by Trainers from the Ministry of Justice, which is in charge of putting the Act into effect. These Trainers attend refresher courses on a regular basis in order to improve their skills. The Ministry places a high value on the training of Mediator Trainers and Mediators. The use of mediation as an alternative dispute resolution method has many benefits. The key benefit is that settlements can be reached swiftly and inexpensively, giving the parties more influence over the decision-making process and assurance that the result will be viable and realistic. In addition, results are mutually acceptable, meaning mediation results have a higher rate of compliance. These agreements can be as detailed and specific as required. even though parties acquire innovative problem-solving techniques that will be useful in future talks. A working relationship can be maintained through mediation, or if preservation is not possible, it can lead to a more peaceful breakup. Economic decisions can also be made rationally and without bias. Community Mediation- Mediation boards (created under the Mediation Boards Act No. 72 of 1998) have the authority to mediate conflicts. Disputes are referred to a mediation board by disputing parties and, in some cases, the District Court, Magistrates Court, or police. The Mediation Boards Act requires that certain situations be referred to mediation before taking legal action in these courts. When it comes to movable or immovable property, or a debt, damage, or demand that does not exceed Rs. 25,000/-, civil disputes must be sent to mediation (unless it gives rise to a cause of action which is exempted).Some few criminal offenses, such as assault or the use of unlawful force, dishonest property theft, the killing or maiming of livestock, trespassing, or 69 Copyright © 2023, The Open University of Sri Lanka (OUSL) Unit V – OSU4404 Session 07: Alternative Dispute Resolution defamation, may also be referred for mediation. The mediation boards handle a significant number of cases involving communal disputes. But more and more debt recovery conflicts are now being referred to mediation by banks and other service providers. Commercial mediation - In accordance with the Commercial Mediation Centre of Sri Lanka Act, No. 44 of 2000, the Commercial Mediation Centre of Sri Lanka (CMCSL) was established to promote mediation and conciliation as a legitimate and effective method of resolving and settling commercial disputes and to carry out the mediation and conciliation of commercial disputes. The Center has established guidelines for the needed mediation procedure as well as the costs associated with using the Centre as a mediator. Mediation of Special category disputes- Dealing primarily with disputes relating to social and economic issues is the Mediation (Special Categories of Disputes) Act No. 21 of 2003. An issue must be gazetted in order for it to fall under the Mediation (Special Categories of Disputes) Act. A Cases may be sent to mediation by the parties, the District Court, or the Labor Tribunal. Employment disputes - In most cases, disputes between employers and employees center on the payment of wages or the right to terminate employment. The parties have a number of conflict resolution options at their disposal, and mediation has grown to be a highly popular choice for employment disputes. The Employment Mediation Services Centre (EMSC), a private mediation facility serving both employers and employees, was founded in 2001. The organizational structure and bylaws of the EMSC are designed to prevent either employers or employees from unfairly benefiting from mediation. The Centre has established its own set of guidelines that outline how the mediation sessions would be handled. 70 Copyright © 2023, The Open University of Sri Lanka (OUSL) Unit V – OSU4404 Session 07: Alternative Dispute Resolution Activity 7.4 1 Identify the advantages of using mediation instead of litigation to resolve disputes. 70 7.5 Arbitration Arbitration has been legally recognized in this country for some time. The most recent enactment on the subject is the Arbitration Act, No. 11 of 1995, which establishes a regime that recognizes party autonomy while excluding court intervention except in rare and exceptional circumstances. The Arbitration Act was enacted in response to the need for quick resolution of commercial disputes. Six years later, users argue that Arbitration has not succeeded in eliminating the flaws of the adversarial process. It is argued that it has the potential to be as costly, time-consuming, and disappointing to the user. Arbitration is a process in which disputing parties agree in advance to appoint a neutral third party (arbitrator) who is usually an expert in the subject matter of the dispute and agree to be bound by the arbitrator's judgment. In a closed and private hearing, the arbitrator operates as a private judge. The arbitrator's ruling is final and is based on the evidence and testimony presented during the hearing by all parties. Arbitration may be used to settle civil disputes and some non-indictable criminal offenses. Arbitration can be forced by a court order or voluntary by the consent of the parties. Arbitration is not a formal element of the legal system. However, it is conceivable and recommended to ask a court to issue orders in compliance with the arbitrator's ruling in order to ensure that the orders are enforceable. In addition, it is prudent to include a phrase in a commercial contract that specifies the court to which both parties agree to resort in the event of a disagreement. 71 Copyright © 2023, The Open University of Sri Lanka (OUSL) Unit V – OSU4404 Session 07: Alternative Dispute Resolution Recommended reading The Constitution of Sri Lanka 1978 Judicature Act, No 2 of 1978 Mediation (Special Categories of Disputes) Act No. 21 of 2003 Mediation Boards Act No. 72 of 1998 Commercial Mediation Centre of Sri Lanka Act, No. 44 of 2000 Arbitration Act, No. 11 of 1995 Summary Alternative dispute settlement mechanisms are refer to non-judicial processes that parties can use to resolve their disputes outside of traditional court litigation. In Sri Lanka, the most often used alternative dispute resolution approaches are facilitation, mediation, and arbitration.Flexibility, cost-effectiveness, party autonomy, and secrecy are among the benefits of alternative conflict resolution procedures. They offer alternatives to judicial litigation and can be adapted to the parties' unique interests and the nature of the dispute. Parties must carefully examine the appropriate procedure based on their circumstances and obtain legal guidance if needed. Learning Outcomes Demonstrate the idea of Alternative dispute settlement mechanisms. Understand the advantages and disadvantages of these mechanisms. Identify what is facilitation. Understand the methods and importance of mediation. Identify the meaning of arbitration. Review Questions 1. What are the different types of alternative dispute settlement mechanisms available in Sri Lanka, such as mediation, arbitration, and conciliation? Discuss their key characteristics and advantages. 72 Copyright © 2023, The Open University of Sri Lanka (OUSL) Unit V – OSU4404 Session 07: Alternative Dispute Resolution 2. How does the mediation process work in Sri Lanka? Explain the roles and responsibilities of mediators, parties involved, and the outcomes that can be achieved through mediation. 3. What legislation or rules govern the practice of arbitration in Sri Lanka? Discuss the key features of arbitration, including the 72 appointment of arbitrators, the enforceability of arbitral awards, and the role of the courts in the arbitration process. 4. Compare and contrast mediation and arbitration as alternative dispute settlement mechanisms in Sri Lanka. Analyze their respective benefits, limitations, and suitability for different types of disputes. 5. What role does the Sri Lanka Mediation Centre play in facilitating the mediation process? Discuss its structure, procedures, and the services it offers to parties seeking mediation. 6. Analyze the advantages and disadvantages of using alternative dispute settlement mechanisms in disputes in Sri Lanka 73 Copyright © 2023, The Open University of Sri Lanka (OUSL) Unit V – OSU4404 Session 07: Alternative Dispute Resolution 74 Copyright © 2023, The Open University of Sri Lanka (OUSL) Unit V – OSU4404 Session 06: Judicial Institutions Session 06 Judicial Institutions Contents Introduction 6.1 Hierarchy of Judicial Institutions in Sri Lanka 6.2 Magistrates Courts 6.3 District Courts 6.4 High Courts 6.5 Provincial High Courts. 6.6 Appeal Courts. 6.7 The Supreme Court. Introduction All individuals as well as organisations have the right to submit their complaint before a court of law in Sri Lanka. Therefore, the court system of Sri Lanka has the primary authority for settling any disputes. On the other hand, there are alternative dispute settlement mechanisms which oriented towards reaching an agreeable settlement between the parties based on the principles of compromise and achieving the best outcome for both parties. This session provides a brief understanding of Sri Lankan judicial system and the alternative dispute settlement mechanisms. This session intends to give an understanding on the powers and jurisdictions of the Court System and other types of dispute settlement mechanisms in our country. This session is aimed at non-law students and as a result, is written in an easy- tounderstand and accessible style. 58 Copyright © 2023, The Open University of Sri Lanka (OUSL) Unit V – OSU4404 Session 06: Judicial Institutions 58 6.1 Hierarchy of Judicial Institutions in Sri Lanka. The Sri Lankan court system is critical in safeguarding people's rights, freedom, and property in society. Courts are the primary authority for resolving conflicts, and all individuals and businesses have the right to bring their complaints to a court of law. High Courts, District Courts, Magistrates Courts, and Primary Courts are "courts of the first instance" in Sri Lanka, where cases are considered by a judge and a judgment is issued. If either side disagrees with the ruling, they may request that the case be heard again in a higher court, such as the Provincial High Court, the Supreme Court, or the Court of Appeal. The court system in Sri Lanka is depicted in the diagram below: The Supreme Court Court of Appeal High Courts District Court Magistrate Court Figure 1: court system in Sri Lanka. 59 Copyright © 2023, The Open University of Sri Lanka (OUSL) Unit V – OSU4404 Session 06: Judicial Institutions 6.2 Magistrate Courts In Sri Lanka, there are Magistrate Courts for each of the 74 judicial divisions. Magistrates Court has the authority to handle criminal cases and can give victims compensation of up to Rs. 100,000/-. The penalty imposed on a convicted criminal will vary depending on the circumstances, although the Magistrates Court does not have the authority to impose a sentence of more than two years rigorous or simple imprisonment. The Judicial Service Commission appoints all Magistrates. If a party is dissatisfied with the judgment of the Magistrates Court regarding a conviction, punishment, or order, they may file an appeal with the Provincial High Court to have the case re-heard. The cases heard by Magistrate Courts are following – Offenses against community security. Offenses involving the army, air force, and navy. Offenses involving government employees. Election-related offenses Request for protective orders against domestic violence. Providing false evidence and other crimes against public justice Furthermore, this court can hear cases involving offenses specified in parliamentary Acts. For example, the Forest Ordinance, Excise Ordinance, Cosmetics, Devices, and Drugs Act, Food Act, Road Development Authority Act, and Motor Traffic Act. 6.3 District Courts. In Sri Lanka, there are 57 District Courts, one for each judicial district. District Courts have jurisdiction over all civil, revenue, trust, insolvency, and testamentary issues not specifically allocated to another court by statute. The District Courts can consider a commercial issue for less than Rs. 3 million/-. Appeals from District Court decisions are heard in the Provincial High Courts. 6.4 High Courts In Sri Lanka, each judicial zone has its own High Court, known as the High Court of the Republic of Sri Lanka. The High Court is a first-instance court 60 60 Copyright © 2023, The Open University of Sri Lanka (OUSL) Unit V – OSU4404 Session 06: Judicial Institutions that hears all major criminal cases. The Honourable Attorney-General initiates matters in the High Court, and State Counsel conducts prosecutions. The Court of Appeal hears appeals from the High Court. Activity 6.1 1 List the main powers of the High Courts. 2 Identify the cases which can be heard in District Courts. 6.5 Provincial High Courts The provincial high courts were established by the 13th amendment to the 1978 Constitution. The Chief Justice appoints judges to this court. The goal of establishing this court is to decentralize the Appeals court's jurisdiction to the provincial level. Every province has a Provincial High Court that hears appeals. High Courts have the authority to consider appeals from decisions rendered by Magistrates Courts, District Courts, Primary Courts, and Tribunals (including Labour and Agrarian Tribunals) within the province. High Courts have the authority to uphold, overturn, correct, or amend any order or verdict issued by a Court of First Instance, tribunal, or institution, as well as to order a new trial. A High Court of the Province performs the responsibilities of the Court of Appeal in situations originating within the province. A High Court can also handle cases involving maritime disputes or offenses, as well as commercial disputes involving more than 3 million rupees. 6.6 Court of Appeal The Court of Appeal has the authority to correct any factual or legal errors made by the High Court, Primary Court, Magistrates Court, District Court, or any other institution. A Court of Appeal can also issue writs and grant injunctions. The following are the powers of the Court of Appeal: Appellate Jurisdiction 61 Copyright © 2023, The Open University of Sri Lanka (OUSL) Unit V – OSU4404 Session 06: Judicial Institutions Appellate jurisdiction over first-instance courts and other judicial organizations. Correctional jurisdiction All inaccuracies in fact or law are subject to correction. Recognizance of matters and things of First Instance Courts Case records may be requested and examined. The authority to impose penalty for contempt of court. Imprisonment for no less than eight years is possible. The authority to issue writs (Certiorari, procedendo, mandamus, and qvo warranto writs can be issued.) 6.7 The Supreme Court The Supreme Court is Sri Lanka's highest and most superior court. The Supreme Court has the authority to hear appeals from judgments rendered by the Court of Appeal, High Court, or any other court or tribunal in Sri Lanka, as well as cases relating to the authorities granted by the constitution. In civil and criminal appeals, the Court of First Instance or the Court of First Instance should have final and final jurisdiction. It is led by Chief Justice. The Supreme Court, which is made up of 11 judges, including the Hon. In general, the President of Sri Lanka appoints the Chief Justice. The Democratic Socialist Republic of Sri Lanka's Constitution recognizes the Supreme Court's jurisdiction as follows: Jurisdiction in constitutional matters, Jurisdiction for Fundamental Rights Final Appellate Jurisdiction, Consultative Jurisdiction, Jurisdiction for Fundamental Rights Final Appellate Jurisdiction, Consultative Jurisdiction, Jurisdiction over any breach of Parliamentary privileges, jurisdiction over any other subjects that Parliament may vest or prescribe by law. Activity 6.2 1 List the main powers of the Supreme Court of Sri Lanka 62 Copyright © 2023, The Open University of Sri Lanka (OUSL) Unit V – OSU4404 Session 06: Judicial Institutions 62 Recommended reading The constitution of Sri Lanka 1978 Judicature Act, No 2 of 1978 Savitri Goonesekere, “Judicial Institutions in Sri Lanka: The Nexus Between Law and Politics" H. L. de Silva, "The Judiciary and the Rule of Law in Sri Lanka" Summary Sri Lankan courts are the primary authority for settling disputes, and all individuals and businesses have the right to file a complaint with a court of law. Litigation is an adversarial conflict resolution process in which two opposing parties argue out their opposing arguments in front of a judge, who renders a legally enforceable ruling. Primary Courts, District Courts, Magistrates Courts, and occasionally High Courts and Provincial High Courts hear cases first. Each court hears several types of cases. Learning Outcomes Demonstrate the jurisdictions of the Court System in Sri Lanka Understand the powers of the courts. Identify the importance of the court system. Understand the jurisdiction of different courts. Identify the difference of each Courts. 63 Copyright © 2023, The Open University of Sri Lanka (OUSL) Unit V – OSU4404 Session 06: Judicial Institutions Review Questions 1. What are the powers of The Supreme Court of Sri Lanka? 2. Identify the jurisdiction of the Magistrate courts and High Courts. 3. Point out powers of the Appeal court of Sri Lanka. 4. What are Provincial high courts? 5. What are the different levels of courts in Sri Lanka's judicial system, and what is the jurisdiction of each level? 6. How is the judiciary structured in Sri Lanka, and what is the relationship between the Supreme Court, the Court of Appeal, and other subordinate courts? 7. What safeguards are in place to ensure judicial independence in Sri Lanka, and how do these mechanisms contribute to the impartiality and integrity of the judiciary? 8. How does the appointment process for judges in Sri Lanka work, and what criteria are considered in the selection of judges? 9. What role does the Supreme Court play in interpreting the Constitution of Sri Lanka, and how does its interpretation influence the legal landscape and governance in the country? 10. How does the judiciary in Sri Lanka handle the resolution of disputes, both civil and criminal, and what procedures are followed in the administration of justice? 64 Copyright © 2023, The Open University of Sri Lanka (OUSL) Unit V – OSU4404 Session 06: Judicial Institutions 64 65 Copyright © 2023, The Open University of Sri Lanka (OUSL) Unit ΙV – OSU4404 Session 05: Sources of Law -Part 02 Session 05 Sources of Law. -Part 02 Contents Introduction 5.1 Legal Materials 5.2 The Customs 5.3 Religions 5.4 The writings of the jurists 5.5 Equity Introduction This is the second part of the session on the Sources of law. Essentially, sources of law are the places where we can find laws. When we discuss the sources of law in relation to the Sri Lankan scenario, we can demonstrate how, over centuries, Sri Lanka has been ruled by Western powers that have influenced the development of these sources. In the previous session, it was discussed how important the constitution, other legislation, and court cases are as primary sources of law. The other sources of law will be discussed in this session. such as legal materials, customs, religions, jurists' writings, and equity. As a result, this session will briefly discuss the significance of the aforementioned legal sources. 5.1 Legal materials When looking into the subject of Sri Lankan sources of law, you will notice the wide range of local and foreign legal materials. A significant portion of Sri Lankan law is derived from some foreign legal systems, thus there is a wide range of relevant foreign legal materials. In order to study law properly in Sri Lanka, access to law books and law libraries was required. 49 Copyright © 2023, The Open University of Sri Lanka (OUSL) Unit ΙV – OSU4404 Session 05: Sources of Law -Part 02 In general, legal materials that can be used as sources are classified in the following order of importance. Statutes – As discussed in the previous sessions, legislation forms a very major source of law in Sri Lankan law. Law reports – The Sri Lankan legal system recognizes the importance of judgments delivered by Sri Lanka's superior courts in litigated disputes as a source of law. As a result, in these subjects, the course materials will always cite and discuss these decisions. The originals of these judgments or judicial decisions must then be referred to as they appear in specified law reports. Cases are judgments or judicial decisions that are cited by referring to the names of the litigants (Jayawickrama v. Amarasuriya) followed by the year of the case, the volume number of a named report, given in a standard abbreviation, and the page on which the judgement appears. In the example given above, the case will be cited a follow: Jayawickrama v. Amarasuriya (1918) 20 N.L.R. 289 N.L.R. is the standard abbreviation for the New Law Reports of Sri Lanka. A list of the standard abbreviations used when citing law reports. In this case, the year of the case is 1918 and the number of the volume is 20 and the judgment is printed from page no 289. The work of Jurists and commentators on Roman-Dutch law. – In Sri Lanka, English versions of the works of Dutch jurists are accessible. Textbooks – The early legal literature has been supplemented in recent years by numerous works on various topics of Sri Lankan law written in both English and Sinhala. Textbooks on English law, Roman Dutch law, and other legal subjects are particularly helpful as learning resources for subjects where Sri Lankan law is drawn from English law and Roman Dutch law, as well as to stay up to date with changes in interest in other legal systems. Legal Periodical – Legal articles can be found in law journals and other periodicals, and they are frequently quite helpful in elucidating difficult legal concepts. Additionally, they reveal the outcomes of innovative research and fresh perspectives on accepted readings and analyses of legal principles. as well as legal rulings. In some situations, the opinions presented in journal papers have influenced the decisions made by the courts in important cases. These journals provide crucial legal information. Scholarly writings about the law are rarely published in journals or other periodicals. 50 Copyright © 2023, The Open University of Sri Lanka (OUSL) Unit ΙV – OSU4404 Session 05: Sources of Law -Part 02 Digests, Encyclopaedias, legal dictionaries, and Bibliographies – A summary of the cases presented in that volume will always be included in a law report. Digests of reported instances are available separately and independently, both domestically and internationally. These digests merely assist you in finding the pertinent case quickly regarding a certain issue or topic. They shouldn't be viewed as an indepth analysis of a case because they just offer a succinct summary of the issues raised. Law libraries in this country may contain local and foreign digests of legislation passed over many years. Encyclopaedias and legal dictionaries make it quick and simple to look up the meaning and application of legal concepts, terminology, and phrases. They are typically more thorough, which results in digests that are more educational. Activity 5.1 1 List the main legal materials discussed above. 2 Identify the importance of the legal materials as a source of law. 5.2 The Customs Although in the English and Roman-Dutch systems customs have been an important and considerable source of law in these systems ancient customs early became an integral part of the law and hence the great formative period of the more important customs belongs to the past. Very different however were the customary laws prevailing in this country at the commencement of British rule for living customs as of their very stuff and essence and upon their being bodies in our legal system by the Proclamation of 2nd September 1799 statutory force was given to a large body of customary law. Other prominent examples of such introduction of customs are Article 04 of the Kandyan Convention Clause XXXII of the Royal Charter of 1801 and the Tesawalamai Code of 1806. Other 51 Copyright © 2023, The Open University of Sri Lanka (OUSL) Unit ΙV – OSU4404 Session 05: Sources of Law -Part 02 enactments such as the sale of Goods Ordinance also give effect to custom to a lesser degree. In addition to statutory introduction customs have also moulded our law through judicial adoption and recognition. Customs variously defined as habits, practices, or usage have been judicially explained as a particular course of dealing or line of conduct generally adopted by a person engaged in a particular mode of business or more fully it is a particular course of dealing or line of conduct unless they have expressly or impliedly stipulated to the contrary. It will thus be seen that general adoption and notoriety are of the essence of custom or usage. Customs must further be certain with other reasons, of long duration enjoy continuity, and be consistent with other customs and general principles of law. It must not be opposed to common law and must be observed as of right. It must further not have been abrogated by disuse The courts will not hesitate to indicate their disapproval of custom that it considers unsatisfactory or contrary to the public interest. For example, a custom of merchants in Ceylon by which agents were entitled. Activity 5.2 1 What is the importance of customs.as sources of law? 2 What is the meaning of customs? 5.3 Religions We shall observe in our study of law that ecclesiastical values of cannon law influence the content of both English and Roman-Dutch law. Christian religious values or practices may also have entered a local statute. However, Christianity was never considered as an independent source of law. The same may be said of Hindu and Buddhist ecclesiastical law, except when they regulate lands belonging to temples or places of religious workshop of Buddhists and Hindus or in relation to religious trusts. The legal position differs considerably in the case of Muslim Law. In certain parts of Africa Islam, a treat as the law of an ethnic community and 52 Copyright © 2023, The Open University of Sri Lanka (OUSL) Unit ΙV – OSU4404 Session 05: Sources of Law -Part 02 a type of customary law that had to be proved in the manner accepted by English law for the recognition of customs as a source of law. In Sri Lanka, Muslim law was originally given legal recognition in the Proclamation of 1799 the customary law of the Muslims. Its principle is thus relevant in the area of family law and wakfs or Muslim Charitable trusts. In the case of Ghouse v Ghouse (19861 1 SriL. R 48) has emphasized the importance of Islamic law as the source of l that govern Muslims. We also acknowledged that the constitution upheld a person's fundamental right to practise and practise their chosen religion. If this right is used to expand the application of Islamic law and the constitutional guarantee, the importance of customs as a source of Muslim law in Sri Lanka may be replaced by religion, if not entirely eliminated. If that development take place religion will become an important source of law, at least for the Muslim community. In this context, it's crucial to keep in mind that there can be good policy reasons to extend the restrictions on the application of customs as a source of law to the realm of religion. Activity 5.3 1 What is the importance of religion as a source of law? 2 What are the main religions which had affected the Sri Lankan legal system? 5.4 The Writings of the jurists This is also known as Opinion jurists. As we have already introduced to the different meanings in the previous sessions. Therefore, it is observed that the Opinions of jurists on the content of legal principles are deemed a source of law because these opinions determine the actual content of the law. The opinions of jurists are considered very important sources of the RomanDutch law. As a source of customary laws in Sri Lanka, the work of jurists is equally significant. 53 Copyright © 2023, The Open University of Sri Lanka (OUSL) Unit ΙV – OSU4404 Session 05: Sources of Law -Part 02 5.5 Equity The word equity can in general term be defined as ‘fairness and is associated with principles of justice. Ideally, the law in a legal system should be also fair and just. However, the development of important legal systems around the world, such as English Common law, shows that laws eventually tend to become so rigid that they lose their ability to guarantee the administration of justice. A set of equitable principles is now developed at this phase. Equity has been developed as a body of liberal principles that ensure fairness and justice in the law, thus prevailing the narrow legalism that can grow from a system that focuses on formal legal rules. This concept of equity as a beginning influence on the law which prevented injustice caused by strict adherence to law is reflected in Roman law and Greek thought. In the traditional laws of Sri Lanka, this significant distinction between law and equity cannot be seen. This is due to the fact that in a system like the Kandyan law, the emphasis was not on rigid, universally applicable laws. When resolving a dispute, a tribunal was always expected to consider the situational context of the case and make a decision in light of that context. Recommended reading Weeramantry CG, The Law of Contracts, vol 1 (2nd edn, Stamford Lake (Pvt) Ltd 1999) Cooray LJM, An Introduction to the Legal System of Ceylon (1st edn, Lake House Investments 1972) Hage J and Akkermans B (eds), Introduction to Law (2014) Herbert M. Kritzer , "Legal Systems of the World: A Political, Social, and Cultural Encyclopedia" (2002) H.L.A. Hart , "The Concept of Law" (2nd Edition, Oxford University Press (1961) 54 Copyright © 2023, The Open University of Sri Lanka (OUSL) Unit ΙV – OSU4404 Session 05: Sources of Law -Part 02 Summary This session discusses the sources of law, with a focus on Sri Lanka. It has listed various sources of laws, such as the constitution, statutes, court cases, and numerous other sources. This chapter discussed about legal materials, statutes, law reports, work of jurists, textbooks and legal articles as sources of law. It also discusses how court cases become a source of law. Since this is intended for non-law students, the sources of law are described in a straightforward manner. Learning Outcomes Identify the Secondary sources of law. List the importance of law reports. Identify numerous legal materials. Find out the important of textbooks as a source of law. Identify different works of jurists and commentators on law. Review Questions 1. What are the secondary sources of law? 2. Explore the different types of secondary sources commonly used in legal research, such as legal textbooks, law review articles, legal encyclopedias, and legal treatises. Discuss their characteristics and purposes. 3. Make a list about the importance of different legal materials as a source of law. 4. What is the meaning of law reports? 5. Identify the importance of textbooks as a source of law. 6. A researcher is conducting a study and needs to refer to secondary sources of law. Discuss the importance of secondary sources in legal research and provide examples of commonly used secondary sources. 7. Define secondary sources of law and distinguish them from primary sources. Discuss their role in legal research and the broader legal system. 8. Analyze the advantages and limitations of secondary sources in providing legal analysis, interpretation, and commentary on primary sources of law. 55 Copyright © 2023, The Open University of Sri Lanka (OUSL)