Different Systems of Law in Sri Lanka PDF

Different Systems of Law in Sri Lanka Sri Lankan legal system is a combination of multiple subsystems. When the Portuguese arrived in 1505 there were 2 communities mainly in Sri Lanka a) Sinhalese who occupied the South and West lands of Ceylon, who were largely Buddhist. Sinhala Law...

Different Systems of Law in Sri Lanka Sri Lankan legal system is a combination of multiple subsystems. When the Portuguese arrived in 1505 there were 2 communities mainly in Sri Lanka a) Sinhalese who occupied the South and West lands of Ceylon, who were largely Buddhist. Sinhala Law as originated from the Sinhalese customs, Buddhist teachings practice and rites. Sinhala Law was divided into Low country Sinhalese Law and Kandyan Law. Neither the Portuguese nor the Dutch could occupy the Kandyan Kingdom. b) Tamils who occupied North and East of Ceylon, who were largely Hindus. Thesewalamai were adopted which literally means Law or customs of the land. This was brought by Tamil immigrants who came from the coasts of Malabar and Coromandel. Besides these, there were, c) Muslims who came to Ceylon as traders adopted the Muslim Law to governed their disputes and were scattered all over Ceylon in small groups. Portuguese influence on the Laws of Sri Lanka (1505-1696) The rules did not introduce Portuguese Law to Ceylon. Therefore, the Portuguese influence was very minimum. By Malwana Convention, the colonizers agreed to apply the Sinhala Laws and there were modifications since it was enforced by Portuguese rulers. Dutch influence on the Laws of Sri Lanka (1686-1796) Roman Dutch Law (RDL) was enforced for Dutch residents and their servants, natives who lived within the forts and Christian Converts. Customary Laws such as Thesewalamai, Muslim Law, Chetti Law were applied in respective communities, but RDL was the residuary law which continued even in British period. British influence on the Laws of Sri Lanka British took over the coasts of Ceylon (low country) in 1796 and Kandyan Kingdom in 1815. One of the important characteristics of the British policy regarding administration of their colonies was that they did not introduce English Law by replacing prevailing laws in a colony with their laws. According to the rules governing the colonies which are reflected in the decision of Campbell V Hall,  Preexisting laws (RDL and Special laws) remain unchanged unless changed by the UK parliament or by King’s prerogative power. (or by the local legislature after independence) The Mukkuvar and Chettie laws became nearly obsolete, unless they survived as a local custom. Proclamation of 1796 and Proclamation of 1815 ensured the continuity of existing laws. Similarly, other statutes promulgated by the British administration in Sri Lanka such as Charter of Justice 1801, 1833 and the Ordinance of 1835 reflected the approach set out in Campbell V Hall. When considering about all these developments that have been taken place in the legal system of Sri Lanka it is agreeable that the Sri Lanka legal system is a mosaic of multiple sub legal systems. The Multiple System of Sri Lanka Different Systems of Law ▪ Sinhalese/ Kandyan Law ▪ Buddhist Law ▪ Hindu Law ▪ Thesewalamai Law ▪ Islamic Law ▪ Mukkuvar Law ▪ Roman Dutch Law ▪ English Law Multiple Laws in Sri Lanka before 1505 The Portuguese is the First European Power which exercised their power in Sri Lanka Different communities were in different areas ▪ Sinhalese – Interior of the country ▪ Sinhala Buddhist – Sothern and Western areas ▪ Tamils – Northern and Eastern areas ▪ Muslim traders – Western seaboard ▪ Mukkuvar – Jaffna, Kalpitiya, Puttalam, Batticaloa (A fisher caste from South Western coast in India) ▪ Chetty and Parse Merchants – Colombo (Migrated from India) ▪ Paravas – Around Pearl Fisheries of Sri Lanka (from South India) Kandyan Law – Sinhalese Law No systematized law to guide the administrators of justice. Unwritten law (Contained in no book) Almost untouched by legislation. Acknowledged no judicial decisions. Almost entirely composed of customs, traditions and a few edicts of king carved on rocks. Factors which affected the development of Sinhalese Law ▪ Hindu Laws and customs ▪ Canonical writings, practices and rites of Buddhism ▪ Mauryan customs ▪ Former or immemorial customs ▪ Customs of clans and castes ▪ Customs mainly connected with village land ▪ South Indian Customs The Administration of Justice The king was the fountain of justice Delegation of judicial functions to various officers of state (Subject to Appeal) Important organs of the administration of justice. 1. Gam Sabhas – Death and minor offences, small debts, minor quarrels, boundary disputes, thefts 2. Rata Sabhas – Dealt with matters relating to, caste, marriage, social status. Heard appeals from the Gam Sabhas 3. Sakki Balanda – Inquired into sudden deaths The Judicial powers of the State Officials The extent of jurisdiction of the various officials depended on their status. Infliction of punishment was based on the castes and the rank of the wrong. Low castes people were subjected to more severe and degrading punishments. Classification of state officials. Thesewalamai Law Applicable to the ‘Malabar inhabitants of the Province of Jaffna”. It has prevailed in North Ceylon for several centuries. Certain rules in Thesewalamai, The sons inherited the properties of the fathers. The daughters were given a dowry out of their mother's dowery property only. The sons only inherited, if their mother died and anything was left over of the mother’s property after dowering all the sisters. If the sons were emancipated, they were admitted to the partition of the household goods during the father’s lifetime.  Adoption was only confined to brother’s and sister’s children. Muslim Law No evidence that before 1505 Muslim Law was administrated by the Sinhalese tribunals as a separate system. Muslim community in Sri Lanka conducted their own private and social affairs according to their Laws and Customs. The Laws of the Mukkuvar, the Chettie, the Parsees and the Paravoor These communities preserved their Laws and customs which were recognized by the Courts during the Dutch and British periods. The Multiple System of Law A Tamil living in the Jaffna District: Inherits property on his father’s death according to – The Law of Thesewalamai. He may be called upon to be a trustee of a Hindu temple based on basic principles originated in the – English Court of Equality To determine his powers rights and duties on the above – Hindu Religious Law He would mortgage his property according to principles derived from the – Roman Dutch Law He has choice to contract a marriage according to the – Statutory Law or Customary Law His capacity to marry would be determined – By Statute Law If he brings an action for divorce, he would be subject to – Principles of Law developed in English If he claims for custody of his children, it will depend on – The Roman Dutch Law If his wife’s rights to retain the property brought into the marriage community would be governed by Thesewalamai – The Thesewalamai Influence of various systems of Law Roman Dutch Law Land Law Family Law/ Law of Persons Law of Succession Law of Delicts/ Torts English Law Commercial Law/ Business Law  Legal Systems Civil Law System Multiple System of Law Common Law System Can be explained as, Based on Mixture of above 2 the English Law Roman laws and special laws. developed in English Law Sri Lanka has a mixed and weal legal system Historical Evolution of Legal Systems of Sri Lanka Prior to 1505 – Local Law (Sinhala Law/Kandyan Law, Thesawalamai Law, Muslim Law, Mukkuwar Law) 1656 to 1796 – Above Local Laws, Roman Dutch Law Since 1796 – Local Law, Roman Dutch Law, English Law Present System – Special Laws, General Law (Common Law, RDL and EL) Introduction to Law and Legal Systems Branches of Law The 2 main branches of law are, 1. Criminal Law 2. Civil Law Features of Criminal Law Criminal law involves punishing and rehabilitating offenders and protecting society. The governments are given the power to enforce criminal law. The police and prosecutors are hired by the government to enforce criminal law. Public funds are used to pay for this service. The guilty party is punished by either, 1. Incarceration in jail or prison 2. Fine paid to the government 3. In exceptional cases, execution of the defendant (death sentences) Note, The death penalty is not available in some countries. Thus, the maximum punishment might be limited to imprisonment for life. In criminal law, an accused is presumed to be innocent until proven guilty beyond reasonable doubt. An accused person is not required to give evidence unless he so desires. Civil Law Civil Laws are the non-criminal rules that define civil rights and responsibilities of people and allow them to enforce those rights. Civil law deals with private disputes between individuals or between individuals and organizations. Features of Civil Law Civil disputes usually involve some harm, loss or injury to one party or their property. Courts can order people who caused harm, loss or injury to others to pay money, be subjected to restraining orders, and issue injunctions to forbid parties from injuring people in the future. Classification of Civil Law Civil Law can be classed as; 1. Private Law 2. Public Law Civil Law areas – Private Law of property and persons. Family Law and Land Law. Law of Obligations (Contracts Law and Torts Law/ Delict Law) Private Law branch of Civil Law Law of Contract – Includes many specialized areas of commercial law such as banking, insurance, shipping, sale of goods, agreements to provide services etc. Law of torts (civil wrongs) – forms of unacceptable behavior actionable in court. Family Law – deals with ownership of land and personal property. Other specialized areas – Protection of intellectual property, the establishment of trusts, testamentary actions. Public Law This law consists of laws related to the state. Under public law we can discuss about following laws  Administrative Law Constitutional Law Local Government Law The public law branch of Civil Law Constitutional Law – Sets out the nature of the government and its institutions. It also deals with the rights and duties of citizens as against the government. Administrative Law – Deals with processes of decision-making by the government and its statutory entities, appeals and inquiries relating to such decisions. Construction Law Construction law is part of legal system and tends to overlap with other laws such as, Tort/ Delict Law Property Law Labor Law Insurance Law Contract Law and law of torts operate as alternatives Construction industry and disputes Disputes arise not just because people are entering into building contracts but because of a wide variety of interaction between diverse people. People are dispute creators and are different in, Communication Personality Interpretation The construction industry deals with disputes arising out of contract/s. Major differences between Criminal Law and Civil Law Criminal Law Civil Law Only the government can prosecute the The injured/ affected party could bring legal accused action against wrong doer A criminal case must be proved beyond A civil case only must be proved on the reasonable doubt balance of probabilities Punishments by imprisonment or death could Relief awarded to the injured/ affected is be used only on criminals compensation for the lose Burden of Proof – Civil/ Criminal In each case, one side has the “burden of proof”. Having this burden means the party must prove its case to the court by providing evidence. So, the party with burden must produce evidence in support of their case. In criminal cases, the burden of proof is with the prosecution. In civil cases, the burden of proof is with the plaintiff. Standard of Proof – Civil/ Criminal The standard of proof, on the other hand, refers to how convincing that evidence must be provided by the party who is having the burden. In criminal cases, the standard of proof is “Beyond reasonable doubt”. The meaning of that is the party who is having the burden must prove the evidence of them without having any minute doubt. In civil cases, the standard of proof is “Balance of probabilities”. The meaning of that is the party who is having the burden must prove the case more than 50%. Certain activities can be both crimes and civil wrongs If you punch someone else on the nose and cause it to bleed you could be prosecuted for a crime of assault and in addition, be ordered to pay damages for the injury. OJ Simpson Case Simpson was prosecuted for murder and was acquitted. However, he was ordered to pay millions of dollars’ worth of damages following a civil trial to the relatives of his ex-wife. Legal Systems There are many legal systems. There are nearly 200 member countries in the United Nations system. Many of these countries and their constituent parts (states/regions) may have their own law. Can be grouped as, ▪ Legal systems following the civil law tradition. ▪ Legal systems following the common law tradition. ▪ Legal systems following religious laws. ▪ Legal systems following socialist laws. ▪ Mixed legal system. Civil Law Tradition Civil Law is the dominant legal tradition today in most of Europe, all Central and South America, parts of Asia and Africa, and even some areas of the common law world. (Eg: Louisiana, Quebec and Puerto Rico) Civil law is older, more widely distributed than common law. The legal systems in many civil law countries are based around one or several codes of law. Common Law Common law is a system of law whose key source of law is the decisions in cases by judges. Common law is also sometimes referred to a unwritten law (law that is not embodied in a code or statute) and legal customs which have been recognized and given the force of law. Common law is currently practiced in: United Kingdom (excluding Scotland), Ireland, Australia, New Zealand, Canada (excluding Quebec), USA (excluding Louisiana), Singapore, India, Sri Lanka Doctrine of Stare Decisis This means that legal decisions are binding and shall not be reversed once a court has entered its judgement upon the issue. (Judicial Precedent) This doctrine is in fact the foundation of legality in the common law system. It is important to remember that precedents can be overruled by a subsequent decision by a higher court or Act of Parliament. Write 5 points on Doctrine of Stare Decisis Stare decisis is a legal doctrine that obligates courts to follow historical cases when making a ruling on a similar case. Stare decisis is a Latin term that means “to stand by things decided” It is a legal doctrine that requires courts to adhere to precedent, which means they should follow the rulings made in earlier cases. This helps promote consistency and predictability in the law and ensures that similarly situated cases are treated in a similar way. Stare decisis applies to both lower courts and higher courts, including the Supreme Court. Examples; In the landmark case of Brown V Board of Education (1954), the Supreme Court overturned the ‘Separate but equal’ doctrine established in Plessy V Furguson (1896). The court’s decision in Brown became a precedent that lower courts were required to follow in future cases involving segregation and discrimination. In Roe V Wade (1973), the Supreme Court established a woman’s right to choose to have an abortion as protected by the Constitution’s right to privacy. This ruling has been cited as precedent in subsequent cases involving reproductive rights. In Mapp V Ohio (1961), the Supreme Court that evidence obtained through an illegal search and seizure is inadmissible in court. This decision established the exclusionary rule and has been cited as precedent in numerous other cases involving the Fourth Amendment’s prohibition against unreasonable searches and seizures.  Supreme Court of Sri Lanka Court of Appeal High Court/ Commercial District Court High Court/ Provincial High Court Magistrics Court Primary Court Labor Tribunals Agran Services Commissioner Tribunal Legal systems following Religious Laws Government in which a religion or a religious document is being used as a legal source. The main religious laws are Halakha in Judaism (Participated in Israel), Sharia in Islam (Participated in many countries in the Arab world including Saudi Arabia and Iran) and Canon law in some Christian groups (Vatican). Legal systems following Socialists Laws Legal systems based on socialist laws are found in Socialist Laws. These systems are generally based on the civil legal tradition, with modification and additions from the Marxist-Leninist ideology. One major modification in the area of property ownership. While civil law systems define the nation of private property, socialist law champions the idea of public property. Mixed legal systems This category includes political entities where two or more legal systems apply cumulatively, interactively or where there is parallel co-existence of those legal systems. Examples: South Affrica, Zambia, Namibia, Lesotho, Swaziland, Botswana, Sri Lanka are good examples Sources of Laws Although the legal systems that exist in the world may differ from one another, each legal system has a source or source from which it derives from the laws applied in the system. 1. Primary legislation (Statutes)  - Statutes are the product of law making by a legislative body (Eg: Acts passed by Parliament) - Written laws are the commonest source of new laws or of law reform in Civil Law jurisdictions - In Common law countries, some aspects of the law are dealt with by Statutes. Other aspects are judge made or customary 2. Delegate legislation - These include regulations, rules, orders, notification and by laws created by subordinate bodies (Eg: Minister or a local authority) under specific powers delegate to those bodies by the main legislative body of the country (Parliament) 3. Judge made Laws - Laws developed through decisions by judges - Doctrine of Stare Decisis (a higher courts decision binds a lower court) 4. Customs (Legally recognized practices, usually since time immemorial) 5. Jurist’s Opinion 6. Equity Sri Lanka’s Judicial Structure Introduction Sri Lanka Judicial Structure primarily based on British judicial system modified to suit our country. After independence, the court system was reformed to grater extent by Administration of Justice Law of 1973. Later, the present constitution brought many changes to the court structure which still apply today. Constitutional Provision Institutions for the administration of justice. 105 (1) institution for the administration of justice shall be, (a) The Supreme Court of Sri Lanka (b) The Court of Appeal of Sri Lanka (c) The High Court of Sri Lanka and such other courts of First Instance, tribunals or such institutions as Parliament may from time to time ordain and established. Independence of the Judiciary 107 (1) The Chief Justice, the President of the Court of Appeal and every other judge of the Supreme Court and of the Court of Appeal shall, subjected to the approval of the Constitutional Council, be appointed by the President. Sri Lanka’s Judicial Structure; An Overview Sri Lanka has had and continued to have paramedical judicial structure. Apex Court: The final Appellate Court, Supreme Court Intermediate Appellate Court, Court of Appeal High Court Magistrate and District Court The Court structure consists of, A Supreme Court A court of appeal High Court District Court Magistrate Court Primary Court There are numerous tribunals In cases involving criminal law, a Magistrate Court or a High Court is the only Court with primary jurisdiction, the respective legal domains of each are provided in the Code of Criminal Procedure. The preponderant majority of criminal law cases are initiated at a Magistrates Court. These cases may be initiated by any police officer, or public servant, with a writer or oral complaint to the magistrate. Murder trails and various offenses against the state originate in a High Court. Original jurisdiction over most civil matters lies with the relevant District Court. The Supreme Court The Supreme Court is the highest and final court of record, and exercises final civil and criminal appellate jurisdiction. Litigate who do not agree with a decision of the original court, be it civil, criminal or court of appeal, may take the case before the Supreme Court with permission from the Court of Appeal, or Special permission from the Supreme Court. The Supreme Court, however, will only agree to consider cases involving a substantial legal issue. The Supreme Court is composed of a Chief Justice and not less than six, and not more than ten, other judges. The Supreme Court is entrusted with certain exclusive jurisdiction. Power of the Supreme Court Appellate Jurisdiction Final and conclusive civil and criminal appellate jurisdiction on appeals from the Court of Appeal or any Court of first instance. Constitutional Jurisdiction 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. Jurisdiction on fundamental rights The sole and exclusive jurisdiction to hear and determine issues relating to the infringement of fundamental rights include freedom of thought, conscience and religion; freedom from torture; right to equality; freedom from arbitrary awest, detention and punishment; prohibition of retroactive penal legislation; and freedom of speech assembly, association and movement. 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. Jurisdiction in respect of the breaches of Parliamentary Privilege Presidential election Jurisdiction in election petitions; the enrolment, suspension and removal of attorneys at law. Court of Appeal The Court of Appeal is the first appellate court for decisions of all original courts and certain Tribunal. The Court of Appeal is component of the President of the Court, and not less than six, and not more than eleven other judges. Many cases at the Court of Appeal are presided overbuy a single judge. The court of appeal hears appeals against judgements of the high courts. It exercises appellate jurisdiction for the correction of the errors in fact or in law at a High Court, or any Court of first instance, or Tribunal, or other Institution. Power of the Court Appeal Appellate Jurisdiction Appellate Jurisdiction over the courts of first instance and other judicial institutions. Jurisdiction for correction Jurisdiction for correction of all errors in fact or in fact or in law. In addition to 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. Powers to impose punishment for the contempt of court Imprisonment for a period not less than 08 years can be imposed Power to issue writes The court of appeal also exercises power to grant and issue, as provided by law, many types of writes, writes of certiorari. High Courts The High Court is the only Court which exercise the jurisdiction of the Court of First Instance and the appellate jurisdiction. It exercises the civil jurisdiction as well as the criminal jurisdiction Trials at a High Court are conducted by the state (Sri Lanka), through the Attorney- General’s Department. The Attorney- General’s Department prosecutes on behalf of the State. Murder trials and various offences against the state are tried at the High Court; other criminal offenses are tried at a Magistrate’s Court. District Court Districts courts are the courts of first instance for civil cases. District courts have jurisdiction over all civil cases not expressly assigned to the primary court or a Magistrate’s Court. Each Judicial district has one District Court. Every District Court is a court of record and is rested 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. Magistrate’s Courts Each Judicial division has one Magistrate’s Court. Each Magistrate’s Court is vested with original jurisdiction over criminal offences (other than offenses committed after indictment in the High Court) In cases involving criminal law, the Magistrate’s Courts and the High Court are the only courts with primary jurisdiction. The respective domains of these Courts are detailed in the code of criminal procedure.