Introduction to Law and Legal System
in Sri Lanka
BY H.M.D.DILUSHI AMARASEKARA SENAVIRATHNA
LLB (HONS) , ATTORNEY-AT-LAW
dilushias@gmail.com
What is law?
• “ Aset of rules to regulate behavior of people in a given society at a given
time”
• “Dos and Do not s”
• Hobbes- ‘ law is an obligatory rule of conduct. The commands of him or
them that have coercivepower”
• Salmond; ‘ law is the body of principals recognised and applied by the
state in the administration ofjustice’
• There could be Legal rules and moral rules
• Legal rules are called laws and non legal rules are called
moral rules/customs/ethics
• Legal rules cannot be breached and it is punishable e.g..
Cheating , robbery, rape, murder etc
• Non legal rules are not punishable ; Drinking alcohol on poya days,
not
giving room in a bus to an elderly, unmarried couple living together
• Who has created laws
• Evolved in the society by custom,
convention, religion, beliefs etc.
• Made by a supreme leader( a King) or a
body of people ( a parliament)
• In a society, almost all the areas in
human activity are controlled or
influenced by law
• It has become a regulatory device in
controlling the conflicting social
interest
• What ever it is, law must be able to
cater to the needs of the society and
influence behavior of people
• Businesses are also part of the society
and their behavior is also governed or
influenced by law.
• There are so many laws that
govern businesses in any
society.
• Laws of Sri Lanka
• Sri Lanka has been home for many
communities for along period of time
• Sinhala, Tamil, Muslim are the dominant
ethnic groups.
• Buddhism,
Hinduism,
Islam
and
Christianity are the dominant religions
• Further some geographical areas are
dominated by certain communities whilst
other areas have mixed communities
• The local laws were influenced by this
multi ethnic and multi religious
characteristics
• Therefore the local laws kandyan,
Thesawalamai, Islamic laws have evolved
based on such characteristics
• Our motherland has been invaded and
conquered by Portuguese, Dutch and British
• Their laws and legal systems also have been
introduced to our country in a substantial
manner
• Therefore, the laws and legal systems can be broadly
divided into two periods
• - laws before the foreign invasion
• - laws after foreign invasion
• Sinhala law ( now remain as Kandyan law) There had been
a comprehensive legal system in Sri Lanka. If not the
country would not have developed and governed in the
past. It would have been influenced by the laws and
customs of indigenous people by the time the early settlers
who migrated to Sri Lanka from Indian and the customs and
laws that they brought in to Sri Lanka by then. Now it is
applicable as a personal law for people who get designated
as Kandyans for the purposes of personal laws such as
marriage, property rights etc.
• Thesawalamai
• It was in operation in the North Kingdom
by the time portuguese came to SL. The
sources of this law traces to customs and
laws used by dravidians in Malabar Coast
and Coromendel Coast. It is still
applicable in areas like Jaffna.
The meaning of Thesawalamai is
something like “ Law of the Land” So it is
applicable for people live in a specific
area.
• Muslim Law – although Muslim did not
have a separate Kingdom, the settlers of
Muslims had their own laws applicable to
them but there is no hard evidence to
show that Sinhalese Tribunals
administered Muslim Law
separately in their legal system.
Portuguese and Dutch recognised it as a
separate law. Still its is applicable as a
personal law for Muslims especially in
• The influence of Western laws and legal
systems to SL
• Maritime provinces were acquired by
Portuguese in 1505
• By that time well establish legal system
was in operation. They agreed to uphold
the system
• But they could not comprehend the system
and the substance of the local laws
• When they administered, with or without
their
knowledge their own systems,
thinking creped into the system.
• Dutch influence 1656 to 1796
• The laws that they were having by that time in their own
country was Dutch law influenced by the Roman laws.
Therefore it was called Roman Dutch Law
• They applied their laws to Dutch settlers, their servants,
locals who lived in their Forts and those who practiced
Christianity
• The Roman Dutch was a comprehensive law and when they
thought that locals laws were unsuitable or silent, they used
their R& D for locals too.
• Therefore it became a residual law
• Both the Roman Dutch and Portuguese Laws were not
applied to Kandyans as such areas were never controlled
by them.
• They establish an elaborate court system in SL
• The British Influence 1796 to 1948
• 1796 Maritime provinces surrendered to
the British and formally ceded in 1802
and the Kandyan kingdom was also
captured by the British in 1815.
• However, British continued to apply local
laws and R &D law subject to changes
done if any by introducing statutes of their
own
• The introduction of English Law and the judicial system
greatly changed the laws and legal system of SL.
• Currently the general law applicable to SL are English
Laws, R & D law and the statue law created by our own
parliaments much of them based on those ideas.
• Property laws are still influenced by R &D and Commercial
and Criminal Laws and procedures are mainly influenced
by English Laws. In contract Law, English law of Delicts
alone with R &D are applicable
• Kandyan law is applicable only to Kandyan Sinhalese,
Thesawalamai is applicable to Tamils living in Jaffna and
Muslim law for all Muslims living in SL.
• These special laws are restricted to their personal laws
such as marriage, divorce, inheritance and land matters .
• Classification of laws
• Criminal Law- Punishment by imprisonment,
penalty or death- Sate will prosecute- alleged
person named as accused- courts are different,
procedure different, proof beyond reasonable
doubt
e.g.. Robbery, hurt,
rape, death, fraud etc .
• The offence should be stated in a written law
such as the Penal Code, Exchange control Act ,
Customs Ordinance etc as an offence
punishable
• Criminal Courts such as Magistrates Court and
High Court will hear cases and Procedure is
enumerated in Acts such as Criminal Procedure
Code
• Civil Law- damages or other relief,
person sustained damage or breach
has to institute legal proceedings,
called plaintiff and the other party is
called the defendant,
• They are designed to protect private rights
and state will not prosecute. Proof,
balance of probabilities. Civil courts will
hear the cases and procedure is
indicated in the Civil procedure Code
• Sources of Law
– Statutes
– Customs
– Case Law
– Roman Dutch
Law
– English Law
Court System of SL
Supreme
Court
Appeal
Court
High Court/
Provincial
High Court
Primary
Court
Labour
Tribunal
District
Court
Agrarian
Services
Commissioners
Tribunals
Magistrat
e
Courts
• Supreme Court – The constitution of SL provides
specific provisions as to the powers, duties,
jurisdiction and the procedure of the Supreme
Court and of the Court of Appeal.
• The enshrining of the provisions of SC and CA in the
Constitution of SL as regards the highest courts in Sri
Lanka is to guarantee the independence of the
judiciary and also to safeguard the tenure of judges
of the highest courts.
• Supreme Court is the Highest Court in SL and it has
the final appellate jurisdiction, matters relating
constitutional affairs, Fundamental rights, Consultative
jurisdiction, Election Petitions, hear any breach of
parliamentary priviledges, any matter that parliament
may refer ( refer Article 1118 t 136 of SL Constitution)
• Appeal Court- Next highest Court created by
the constitution. The appeal court has the
jurisdiction for correction of any error in fact
or law committed by any court of first
instance, tribunal or other judicial institution.
• It has power to affirm, reverse, correct or
modify any order, judgment or decree or
sentence given by above institutions
• It also has power to grant injunctions and
writs etc. ( refer article 137 to 147 of SL
Constitution)
• Courts of First Instances
• The High Court –
• High Court has two judicial powers now. High Courts
exercising criminal jurisdiction as well as Commercial
jurisdictions.
• High Court has the power to conduct trails on original
criminal jurisdiction
• High Court can conduct a trial by jury or trial at bar
• High court can impose any sentence or penalty prescribed
by law
• Under the 13th amendment to the SL Constitution, it has
the appellate and revisionary jurisdiction by way of
Provincial High Court .
• Provincial High Court has been vested with
appellate and revisionary jurisdiction in respect
of orders and judgments of the magistrates
Court, Primary Courts, labour Tribunals,
Agrarian Services Commissioners Tribunals
within the province
• Commercial High Court was established
under the High Court of the Provinces act of
1996
• It has jurisdiction to hear civil actions where the
cause of action has arisen out of commercial
transactions in which the debt, damage or
demand exceeds Rs. One Million.
• District Court
• District Courts are empowered with
unlimited original civil jurisdiction. This
court deals in money, revenue, trust,
insolvency, commercial matters, family
matters such as divorce, adoption,
custody of children etc.
• If aggrieved y a decision of DC, an
appeal could be made to the Court
of Appeal
• Magistrates Court ( MC) - Criminal jurisdiction
•
This court exercises basic criminal summary jurisdiction and inquires into
commission of offences.
•
Summary jurisdiction is applied where the Magistrate could read charges
against an accused and asked whether he or she is guilty or not guilty. If
pleads guilty , verdict of guilt will be recorded and punishment will be
imposed.
•
If doesn’t plead guilty, a trial will be fixed and witnesses will be called and cross
examined and a decision will be made.
•
Magistrate Courts has power to imprison or impose penalties as prescribed by
law
•
When alleged offence seems not be a one traible summarily by MC, the
Magistrate will make a Preliminary Inquiry to find out whether there is enough
evidence to forward it to High Court. The charge will be read but accused will
not be asked to plead guilty or not. Witnesses are produced and cross
examined to find out the sufficiency of evidence to proceed to High Court.
• Primary Court ( Civil jurisdiction)
• The judicature Act provides for primary court
adjudication where the debt, damage, demand
or claim does not exceed Rs. 1500.00
• Further Primary Court has very important
jurisdictions such as
• - Actions for the enforcement of local authority bylaws and recovery of revenue due to such authority
• Land disputes which are likely to cause breach of
the peace. It could decide who is in the
possession of the land but it does not decide on
the ownership of the land which is a matter for
District Court to decide.
• Alternate Dispute Settlements
• There are many steps taken by the
judicial System to sort out problems out
of the main stream court system. The
intention was to make things easy and
settle disputes early. Reduce the work
load of courts etc.
• Mediation Boards- The mediation Boards Act of
1995 and subsequent amendments govern this
mediation aspects.
• The Minister has power to set up Mediation Boards and set
the
areas that will come under such mediation boards.
• Commercial mediations are reality now in SL.
• Arbitration ; Is also another form of dispute resolution .
Arbitration Act of
1995 and subsequent
amendments govern the procedure
• Tribunals- Labour Tribunal established under industrial
Disputes Act provides provisions for the employees to institute
action against employers.
• Agricultural Tribunals established under the Agrarian Services
Act of 1979 enables settling disputes as to cultivation and
related matters.
• Read Judicature Act , Constitution of Sri Lanka , Books on
Legal System about Sri Lanka for further details. Visit
website of Minisrty of Justice as well to get current
information