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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 a B.A. in English from the University of San Francisco.  A recent Library and Information Science graduate, Tambimuttu has worked in Public Services for many years at the Heafey Law Library, at Santa Clara University, as well as at Stanford University Libraries.

1. Introduction

Sri Lanka, formally known as Ceylon, is a multi-ethnic and multi-religion island nation in the Indian Ocean, near the southern coast of India. The distance between the south-eastern tip of India and north-western Sri Lanka is only about 40 miles. Sri Lanka’s total land area is 25,330 square miles, roughly the size of West Virginia, and it a population of a little more than 20 million. Due to major civil conflict that has affected Sri Lanka for more than two decades, no census was conducted in certain parts of the country during the last two decades or more. Thus, all demographic figures include relevant estimates for certain areas in the country.

The ethnic and religious diversity of the nation, and also its colonial history, have a direct bearing on aspects of the legal system of Sri Lanka.

The country’s largest ethnic group is the Sinhalese whose native tongue is the Sinhala language. The Sinhalese form about 74% of the population. The majority of the Sinhalese are Buddhists, with a Christian minority.

The next largest ethnic group is composed of the Tamils who form 18% of the population, and their native tongue is the Tamil language. The majority of the Tamils are Hindus, with a Christian minority.

The majority of the Christians among both the Sinhalese and the Tamils are Roman Catholics.

The descendants of Indian tea-estate workers, brought in by the British from Southern India from the nineteenth century to the 1930s, form a distinct group. Their native language also is Tamil and they also are referred to as up-country Tamils. The majority of up-country Tamils are Hindus, and they still form a mainstay of the tea industry employees. The 18% figure for the percentage of Tamils in Sri Lanka includes the up-country Tamils.

The third largest ethnic group is composed of Muslims, mainly descendants of Arab traders, and Malays, mainly descendants of South-East Asians who arrived in Sri Lanka during Dutch rule of the country. For a significant segment of the Muslims, Tamil is the main language. The Muslims, excluding the Malays, constitute about 7% of the population.

The other ethnic group is composed of Burghers who are descendants of Dutch and Portuguese settlers, and are mostly Christian. Largely due to the strongly nationalist politics that began in the 1950s, a significant segment of the Burghers emigrated to Australia. Due to this emigration, and also due to Burghers marrying Sinhalese and Tamils, the Burghers now are a relatively small community in Sri Lanka. English is the first language for the Burghers.

The Burghers, Malays, and the Veddhas, who are the descendants of the original inhabitants of Sri Lanka, form about 1% of the population. (All ethnic-composition figures are from the “New York Times Almanac” 2008).

2. Colonial History and the Law

European control of what is now Sri Lanka began a few years after 1505 when inclement weather drove a Portuguese fleet of ships, commanded by Lourenco de Almeida, into what is now the Colombo harbor. Colombo, now the capital of Sri Lanka, is on the west coast of Sri Lanka.

Almeida, who also realized the strategic value of the island-nation in the context of trade routes, established cordial relations with the King in Kotte. Over a few years the Portuguese, capitalizing on the divisions within the Kotte kingdom, gradually gained control of much of the country’s coastal regions. Kotte, situated in a suburb of Colombo, is now the legislative capital of Sri Lanka.

The Portuguese did not introduce their laws in the coastal regions they controlled. They did, however, establish the Roman Catholic faith as the strongest Christian faith in the country.  The Portuguese were ousted by the Dutch during the 1600s.

With the Dutch gaining control of Sri Lanka, primarily in the coastal regions, Roman-Dutch law gained a presence in the country. This “Roman-Dutch law has withstood many a tide of legal and political change to remain as the foundation of Sri Lanka’s general and common law.” 1

The Dutch judicial system was well organized. Three major courts of justice were established: one each in Colombo (west), Galle (south), and Jaffna (north). A circuit court, the Land Raad, presided over by a dissava, sat in various districts. Local chiefs sat in on cases involving local customs.  Thus the customary and personal laws that existed in the West, South and North of the country also were administered in the courts, unless these were in sharp discord with Dutch jurisprudence.

The customary and personal laws are based on ancient customs of the Sinhalese and Tamils whose ancestors hailed from specific regions in the country, as well as the customs of the Muslims.

In the 18th century, Roman-Dutch law was increasingly used in the south-west and the south. As a consequence, private property (land) rights spread rapidly in these areas, and property transfers were subject to Roman-Dutch law.

The Dutch also made efforts to codify the customary law of the different ethnic groups.  Codifying Sinhala customary law, however, posed difficulties because of regional diversity and associated issues. Partly as a consequence of this problem, Roman-Dutch law increasingly applied to the Sinhalese in the coastal areas, especially to those Sinhalese who were Christians.

The Thesawalamai, the laws and customs of the Tamils of the Northern Jaffna province, was codified in 1707.

A code of Muslim law was applied with the consent of Muslim elders.

The British ousted the Dutch from Sri Lanka in 1796, and adopted a unitary administrative and judicial system for the entire country. A decision by the British to continue enforcing the existing laws, and consequent developments, led to Roman-Dutch law gaining a firm presence in the entire country. As the Sri Lankan legal academic Anton Cooray states:

“The surrender of the Dutch possessions in Sri Lanka in the twilight years of the Eighteenth Century was a blessing in disguise for the future of Roman-Dutch law (in Sri Lanka).” 2

In 1815, when the Kandyan Kingdom in central Ceylon fell to the British, for the first time in history, the entire country of Ceylon came under the rule of a foreign power. At this point, the application of Roman-Dutch law was extended to the whole country: “The British administration, which undertook to continue to apply existing laws, extended the application of Roman-Dutch law beyond the Dutch controlled  coastal areas when, in 1815, British sovereignty extended to the whole of Sri Lanka.” 3

The British established a modern system of judicial and civil administration. They respected the prevailing laws, namely the Roman-Dutch laws, and the customary laws that applied to the different ethnic groups.

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

3. Legal Constructs

Under British rule, the Charter of Justice of 1801 ensured the continuation of the laws that were in force at that time.  These applicable laws were all of the following: Roman-Dutch principles brought into force by the Dutch, the Kandyan Law that applied to the Kandyan provinces, the Thesawalamai Law (also spelt as ‘Tesawalamai’) that applied to the Jaffna Tamils in the Jaffna province, the Muslim Law that applied to the Muslims, and a limited body of Buddhist and Hindu Law applicable mainly to Buddhist and Hindu religious property and customs.

This conglomeration of different laws led to British judges encountering some difficulty 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 that there existed ambiguity on 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 Law and Thesawalamai.

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. It has co-existed with several systems of indigenous laws, and the English common law, creating a “distinct legal culture that is described today as a ‘mixed’ civil and common law system.”4

Thus “Roman-Dutch law is often described in Anglo-American legal terminology as the ‘common law’ of Sri Lanka … A system of law that applies in Sri Lanka when statutes and indigenous laws do not regulate any matter.”5

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.

Today, Roman-Dutch law exists only in Sri Lanka and South Africa.

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 1815.

Kandyan Law does not apply to all Sinhalese who are now resident in the Kandyan provinces; however, Kandyan Law does apply to Kandyan Sinhalese who now do not reside in the Kandyan provinces in central Sri Lanka.  Kandyan Law that remains applicable to Kandyan Sinhalese in present day Sri Lanka relates to marriage, divorce, and interstate succession.

Kandyan Sinhalese have the option of choosing to marry under the Marriage and Divorce (Kandyan) Act, or the General Marriage Ordinance. Kandyan Sinhalese who choose to marry under theKandyan 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 Sinhalese who choose to marry under the General Marriage Ordinance are governed by Roman-Dutch Law in matters relating to marriage, divorce, and interstate succession.

The relevant laws on this topic are mostly in the Kandyan Declaration and Amendment Ordinance, and the Kandyan Marriages and Divorce Act.

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

In Family Law related issues, the Muslim Special Laws apply to all Muslims in Sri Lanka. When a Muslim marries another Muslim, the bride and the groom do not have the option of getting married under the General Law, unlike in the case of Kandyan Sinhalese. Marriage, divorce and other related issues involving Muslims are governed by the Marriage and Divorce (Muslim) Act, no.13 of 1951, and any subsequent amendments.

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

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. Suntheralingam, under Thesawalamai “the surviving spouse is not (automatically) an heir of the deceased’s estate.”  The spouse, however, has preferential claim under certain circumstances.

Also, under Muslim personal laws, for instance, “Although section 25 (1) (b) of the Muslim Marriage and Divorce Act states that the consent of the bride is essential to a marriage, in reality her presence is not required when the marriage contract is concluded between the father or guardian of the bride, and the groom. The consent of the bride is irrelevant to the conclusion of the marriage contract.”7

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:

Given the context of a war [the current ethnic conflict in Sri Lanka], whose roots

belong to ethnic tensions, it is unlikely that we would see in the next few years

amendments to the personal laws which would result in positive change for

[women’s  rights]. This is because the concept of women’s right to equality has

been continuously subordinated in Sri Lanka to the major debate on minority

rights. 8

It should be pointed out, however, that these types of personal laws notwithstanding, only a minority of women to whom these laws are applicable suffer undue discrimination. In 1960, Sri Lanka elected the world’s first woman Prime Minister, Sirimavo Bandaranaike. Bandaranaike’s daughter, Chandrika Bandaranaike Kumaratunga, was elected President twice (under a different Constitution). Kumaratunga served as President from 1994 to 2005.

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

In Sri Lanka, there are five systems of private law. The Roman-Dutch law, as

modified by statutes, and interpreted by the courts, is the general law of the land.

English common law applies to commercial contracts and commercial property

and has been tacitly accepted in many matters. English law was also introduced

by statute and as such forms the statutory law of the land. The Thesawalamai 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. 9

4. The Structure of the Courts System

The court-structure consists of a Supreme Court, a Court of Appeal, High Courts, Municipal Courts, and Primary Courts. Additionally, there are numerous tribunals, etc.

In cases involving criminal law, a Magistrate’s Court or a High Court is the only court with primary jurisdiction; the respective legal domains of each are provided in the Code of Criminal Procedure.

The preponderant majority of criminal law cases are initiated at a Magistrate’s Court. These cases may be initiated by any police officer, or public servant, with a written or oral complaint to the magistrate (see section on Magistrate’s Court).

Murder trials and various offenses against the State originate in a High Court (see section on High Courts).

Original jurisdiction over most civil matters lies with the relevant District Court (see section on District Courts).

Until 1972, The Judicial Committee of the Privy Council in Britain was the final court of appeal for Sri Lanka. The right of appeal to the Privy Council “was abolished…as there were concerns that any attempt to discard the existing Constitution in 1972 might be adjudged unconstitutional.” 10

At that time, “Parliamentarians constituted themselves as members of what was termed the ‘Constituent Assembly’ to draft and adopt a new Constitution,” 11 which became effective on May 22, 1972. It has been suggested that the concerns of minority communities in Sri Lanka were not adequately considered in the drafting of that Constitution.

On Aug 31, 1978, another Constitution replaced the 1972 Constitution. Under this Constitution, for the first time in Sri Lanka an Executive President, elected by the entire country, became the leader of the country.  Under the earlier Constitution, the government was headed by a Prime Minister, who, as a Member of Parliament, would have been elected by just one electorate in the country.

As a consequence of major civil strife that erupted in 1983, now efforts are being made to replace the 1978 Constitution with a new Constitution in order to grant greater political autonomy to the different regions in the country. These efforts, at present, seem stalled in an All Party Conference constituted by the current President, Mahinda Rajapakse. Furthermore, not all political parties in the country agreed to participate in the Conference.

There are also other courts such as the Kathi Courts that handle matrimonial disputes among Muslims, and numerous tribunals (see section on Other Courts).

4.1. The Supreme Court

The Supreme Court is the highest and final court of record, and exercises final civil and criminal appellate jurisdiction.

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.

Appeals of decisions of a High Court Trial at Bar are heard by a Bench of five or more Supreme Court judges.

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. During the Supreme Court’s determination of the issue, the President can appear before the Court to present his or her case, or the President may be represented by an attorney-at-law. The Supreme Court then reports its determination, and the reasons for its determination, to the Parliament.

This determination and opinion of the Supreme Court should be by at least five judges of the Supreme Court, including the Chief Justice, except for in the event of the Chief Justice’s recusal. The Chief Justice’s recusal will result in another judge of the Supreme Court taking the Chief Justice’s place.

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.

Supreme Court cases are published in the Sri Lanka Law Reports. As of October 2008, Supreme Court cases from 1878 through 2005 are accessible online. See the section on Cases, Bills and Acts.

Judges of the Supreme Court and Court of Appeals (next section) are appointed by the President of the Republic, subject to provisions in Article 41C of the Constitution. Article 41C was introduced by the 17th Amendment to the Constitution which became effective on October 3, 2001.

The 17th Amendment stipulates that the President’s selection and appointment of a Supreme Court judge requires the approval of the Constitutional Council, which is composed of the Prime Minister, the Speaker of the Parliament, the Leader of the Opposition in Parliament, a nominee of the President, five persons appointed by the President who were nominated by both the Prime Minister and the Leader of the Opposition, and one person selected by the majority of Members of Parliament belonging to political parties or independent groups not affiliated with the political parties or groups of the Prime Minister or Leader of the Opposition.

The Constitutional Council’s approval is not required if the appointment is for a period of less than 14 days.

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

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

The Parliament, by law or by Standing Orders, provides for all matters relating to the presidential address to Parliament, including the procedure for passing the resolution, information on the investigation, proof of the alleged “misbehavior” or incapacity of the judge, and the right of the judge to appear before Parliament and be heard in person or through a representative.

The age of retirement for Supreme Court judges is 65 years.

4.2. Court of Appeal

The Court of Appeal is the first appellate court for decisions of all original courts and certain Tribunals.

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.

“Even when there is no right of appeal from a particular court or tribunal, [the Court of Appeal] can exercise [its] powers of  ‘revision’ and quash the original court’s or tribunal’s order [based on] an error of law apparent [in] the record.” 12 The Court of Appeal, if appropriate, also has the authority to issue a ‘stay order’ and suspend proceedings in a lower court until the revision application is heard and determined.

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.

Appeals of judgments, sentences and orders at a High Court Trial at Bar are forwarded directly to the Supreme Court by virtue of the Code of Criminal Procedure (Amendment) Act, No.21 of 1988.

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 Capital city. 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.

Court of Appeal cases are now published in Sri Lanka Law Reports. As of October 2008, Court of Appeal cases from 1809 through 2005 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.)

4.3. High Courts

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 offenses against the State are tried at the High Court; other criminal offenses are tried at a Magistrate’s Court.

While some High Court trials will have a jury, some trials will not have a jury. The types of cases that require a jury are provided in the Second Schedule of the Judicature Act No.2 of 1978. 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.2 of 1978 should nonetheless have a jury.

The Penal Code stipulates the types of cases argued in a High Court: “The Penal Code defines most of the criminal offenses known to our law. And the Code of Criminal Procedure Act. No: 15 of 1979 sets out which of these offenses [can be tried] by each court [High Court and Magistrate’s Court].” 13

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:

i.                     Original jurisdiction over prosecution of offenses committed within a particular province.

ii.                  Admiralty jurisdiction, which is usually exercised in Colombo, the capital city.

iii.                Commercial jurisdiction, which is vested by the High Court of the Provinces (Special Provisions) Act, No. 10 of 1996.

iv.                 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 111 L (2) of the Constitution.

v.                   Applications for the return of, or access to, a child, under the Hague Convention, is handled by the High Court of the Western Province (Civil Aspects of International ChildAbduction Act, No:10 of 2001).

vi.                 Appellate jurisdiction over convictions, sentences, and orders imposed by the Magistrate’s Courts and Primary Courts within the province.

vii.               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.

viii.             Appeals of decisions reached by Labor Tribunals, Agrarian Tribunals, and Small Claims Courts.

The Provincial High Court sits in the following cities: Colombo, Kalutara, Galle, Matara, Batticaloa, Jaffna, Chilaw, Negombo, Gampaha, Kegalle, Kurunegala, Kandy, Avissawella, Ratnapura, Badulla, and Anuradhapura.

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 President may terminate the service of a High Court judge on the advice of the Judicial Service Commission.

The Judicial Service Commission (JSC) was established by the enactment of Article 111D of the Constitution, incorporated by the 17th Amendment, which became effective on October 3, 2001. The JSC is composed of the Chief Justice (as Chairman) and two other judges of the Supreme Court appointed by the President of the Republic.

The age of retirement for High Court judges is 61.

4.4. District Courts

District 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.

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:

i.                    Cases related to ownership of land.

ii.                  Action by landlords to eject tenants.

iii.                Action to recover debts of more than Rs. 1,500.

iv.                 Action in connection with trademark and patent rights, and infringement of copyright laws.

v.                   Claims for compensation of more than Rs. 1, 500 for injuries caused by negligence.

vi.                 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. 10 of 1996.

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). Usually, the plaintiff, or the plaintiff’s attorney, must ensure that the Court’s fiscal officer serves the summons, with a copy of the plaint, to the defendant.

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 plaintiff may then file a replication in response to the defendant’s claim in reconvention.

The above procedure is the normal procedure at the District Court. There is also a Summary Procedure for the District Court provided in Chapter 53 of the Civil Procedure Code.

Judges of the District Courts are appointed by the Judicial Service Commission (See section on High Courts for information on the JSC). The JSC has the power to dismiss and maintain disciplinary control over the District Court judges.

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

4.5. Magistrate’s Courts

The Magistrate’s Courts are established under the Judicature Act, No.2 of 1978.

Each Judicial division has one Magistrate’s Court, and there are 74 judicial divisions in Sri Lanka.

Each Magistrate’s Court is vested with original jurisdiction over criminal offenses (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.

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 vast majority of the nation’s criminal cases are tried at the Magistrate’s Courts level, which forms the lowest level of the judicial system.

Cases may be initiated at a Magistrate’s Court by any police officer or by anyone else making an oral or written complaint to the Magistrate. 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.

If it is determined that the Magistrate’s Court has the proper jurisdiction over the matter, the prosecution may be conducted by the complainant (plaintiff), or by an officer of the Government, including the Attorney-General, the Solicitor-General, a state counsel, or any officer of any national or local government office.

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 the police decide not to institute criminal proceedings in a Magistrate’s Court, the complainant has the option of filing a private plaint, and the complainant may retain an attorney for this purpose.

As indicated earlier, while murder trials and various offenses against the State (Sri Lanka) are tried in a High Court, other criminal offenses are tried in a Magistrate’s Court. The Penal Code defines which court, a Magistrate’s Court or a High Court, has the necessary jurisdiction (Code of Criminal Procedure Act No.15 of 1979).

If a new offense is codified by law, for instance the Prevention of Terrorism Act, the relevant statute will indicate the manner of trial.

The Magistrate’s Courts are ordinarily empowered to impose the following sentences: A fine of up to Rs. (rupees) 1,500.00, and/or two years of rigorous or simple imprisonment, unless special provisions vest the Magistrate’s Courts with the power to impose higher penalties.

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).

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

4.6. Primary Courts

Each Primary Court is vested with the following jurisdictions:

i.                    Original civil jurisdiction over cases involving debt, damages, demands, or claims that do not exceed Rs. 1,500.

ii.                  Enforcement of by-laws by local authorities and disputes relating to recovery of revenue by these local authorities.

iii.                Exclusive criminal jurisdiction over cases relating to offenses “prescribed” by regulation by the Justice Minister.

iv.                 Offenses in violation of the provisions of any Parliamentary Act, or subsidiary legislation, that is related to jurisdiction vested in the Primary Courts.

The Primary Courts are established under the Judicature Act, No.2 of 1978.

There are seven Primary Courts:  One each in Anamaduwa, Angunukolapelessa, Kandy, Mallakam, Pilessa, Wellawaya and Wennappuwa.

In all other divisions, the Magistrate’s Court exercises the jurisdiction of the Primary Courts.

Requests for revision of orders made by a Primary Court are handled by the High Court in that province.

All Primary Court judges are appointed by the Judicial Service Commission (JSC), which is also vested with the power of dismissal of the Primary Court judges (See section on “High Courts” for information on the JSC).

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

4.7 Other Courts and Tribunals

The other courts include the Kathi Court, the special tribunal that adjudicates on matrimonial matters relating to Muslims. Buddhist ecclesiastical matters that fall under the purview of theBuddhist Temporalities Ordinance of 1931 are heard by the ordinary courts. Disciplinary matters pertaining to Buddhist clergy are handled by religious councils which are under the authority of the Buddhist priests themselves.

There are numerous administrative tribunals, such as the Inland Revenue Board of Appeal, The Workmen’s Compensation Tribunals, Labor Tribunals, the Board of Appeal under the Factories Ordinance, Tribunals under Agricultural Productivity Law, Labor Tribunals under the Wages Board Ordinance, etc.

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.

5. Case Law

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 1978, when a new Constitution became effective in Sri Lanka, decisions of the Supreme Court before 1978, and the decisions of the Privy Council when this Council in the U.K. was the final Court of Appeal for Sri Lanka, are technically no longer binding. But the earlier case law may still serve as “guidance,” and the word “guidance” suggests that the earlier case law is much closer to binding evidence than to persuasive evidence.

Sri Lanka’s laws passed before 1978 remain valid through Article 168 of the 1978 Constitution.

6. Cases, Acts, and Bills

Supreme Court and Court of Appeal cases now are published in the Sri Lanka Law Reports. As of October 2008, Supreme Court cases from 1878 through 2005, and Court of Appeal cases from 1809 through 2005 are accessible online 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. After accessing the Acts or Bills link, select the “E” link for English. The “S” link is for the Sinhala language version, and the “T” link is for the Tamil language version.

7. Major Codifications

The major codifications are:

i.                    The Civil Code.

ii.                  The Code of Civil Procedure:  Civil Procedure Code. Act 79 of 1988. Amended by Acts 9 of 1991 and 34 of 2000.

iii.                Commercial Code.

iv.                 Criminal Code: Penal Code. Chapter 25. Amended by Penal Code (amendment) Act of 1995.

v.                   Code of Criminal Procedure: Code of Criminal Procedure Act. Chapter 26, Law 15 of 1979. Amended by no. 39 of 1982 (The 1979 Act repealed earlier codifications.)

A comprehensive listing of codes and legislation of Sri Lanka is in the “Sri Lanka” section of Foreign Law: Current Sources of Codes and Legislation in Jurisdictions of the World, edited by Thomas H. Reynolds and Arturo A. Flores. This publication is listed in the Bibliography section of this article.

8. Bibliography

[The] Constitution: Sri Lanka. Chapters XV (Judiciary) and XVI (Superior Courts), in the Official Website of the Government of Sri Lanka.

(Accessed Feb. 2007).

Cooray, Anton. “Oriental and Occidental Laws in Harmonious Co-existence: The Case of Trusts in Sri Lanka.” Electronic Journal of Comparative Law. v.12.1 (May 2008)

pp. 1-17.  (Accessed Aug. 2008).

Courts of Law. The Sri Lankan “Ministry of Justice and Law Reforms,” (Accessed Feb. 2007).

Goonesekera, Savitri. “The Roman Dutch Law in the Plural Legal System of Sri Lanka.” The Colombo Law Review. Faculty of Law, University of Colombo, Sri Lanka. v.9, (1998) pp.1-36.

Jayasuriya, Dayanath C.  “Sri Lanka,” in Legal Systems of the World: A Political, Social, and Cultural Encyclopedia. Vol. IV, S-Z. ed. Herbert M. Kritzer. ABC.CLIO: Santa Barbara, CA (2002). pp. 1526-1531.

“Muslim Personal Law and Women,” by Cat’s Eye, in the Island newspaper, Sri Lanka, July 9, 2003.  Access this URL and select the “Midweek Review” link on the left panel (Accessed Feb. 2007).

Muttettuwegama, Ramani. “‘But I am both.’ Equality in the Context of Women Living under Parallel Legal Systems: The Problem in Sri Lanka.” A Briefing Document.  (Accessed Feb. 2007).

Rajepakse, Ruana.  An Introduction to Law in Sri Lanka. Aitken Spence Printing, Pte, Ltd., 315 Vauxhall Street, Colombo 2, Sri Lanka.1989 (?).

Reynolds, Thomas H., and  Arturo A. Flores. Eds.“Sri Lanka.” (June 2004 release), in Foreign Law: Current Sources of Codes and Legislation in Jurisdictions of the World.  William S. Hein & Co.Inc. Buffalo, New York. v.3 (2003)  pp. Sri Lanka I- Sri Lanka 32.

Sivagnanalingam v. Suntheralingam. 86 SLR (Sri Lanka Law Reports) v.1 (1988).

(Scroll down to the Asia section and select the ‘Sri Lanka’ link.) (A Google-search with the title of the case also may bring up the case.)

Tambiah. H.W. “Sri Lanka,” in Encyclopedia of Comparative Law: National Reports.

ed. Victor Knapp. Martinus Nijhoff Publishers: Dordrecht, Boston, Lancaster (1987)

pp. S-125/S-136.

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Criminal Justice System Of Sri Lanka

Sri Lanka, known as Ceylon until 1972, is a tropical island nation in

the Indian Ocean lying off the southeast coast of peninsular India. It

has the total land area of 65 607 square kilometres, and the total

population of 16.1 million (as of 1986).  The annual population growth

rate is estimated at 1.7%.

The two principal linguistic (racial) groups in Sri Lanka are the

Sinhalese (74%) and the Tamils (18.2%).  Also, approximately 7.1% of the

population are of the Arabic origin, who are mentioned as the Sri Lankan

Moors.  As for the religious groups, approximately 69.3% of the people

are Buddhists, most of whom are the Sinhalese, and 15.5% are Hindus, who

are mostly the Tamils.  Besides, 7.6% are Muslims and 6.8% are

Christians of various denominations.

As for the structure of the government, Sri Lanka became independent in

1948, and is now an independent republic within the commonwealth

nations.  The national law making body is the Parliament, formerly

called the National State Assembly or the House of Representatives,

which is, as of 1986, composed of 168 seats.  The members of the

Parliament are elected by the Sri Lankan citizens aged 18 years or

older.  The head of the Republic is represented by the President, who is

directly elected by the citizens aged 18 years or older.  The term of

the President is also for 6 years.

The cabinet is led by the Prime Minister who is appointed by the

President from among the Parliament members.  As of 1986, the cabinet is

composed of 49 ministerial posts, excluding the Prime Minister.

The entire nation is divided into 25 administrative regions as of 1986.

Each region is governed by the Government Agent, who is appointed by the

central government.

The economy of the country is still precariously dependent on the

exports of its plantation products such as tea, rubber and coconuts. GNP

per capita was US$354 as of 1986. The unit of the national currency is

Rupee (Re or Rs).

BASIS OF CRIMINAL LAW AND PROCEDURE

According to the colonisation by the British Empire, the British laws

were gradually applied throughout the nation. However, due to the

unsatisfactory state of the then existing criminal laws which led to a

state of uncertainty, the Penal Code of Sri Lanka, then Ceylon, was

first enacted in 1833.  It is said that the Law was based on the

corresponding Indian law.  This Penal Code holds good up to now with

several amendments.

The Penal Code embodies categories of offences, the punishments to which

offenders are liable under the Code and general exceptions to criminal

liability.

The broad categories of offences are: offences against the state,

offences against public tranquillity, offences affecting the human body,

offences against property, offences relating to religion, sexual and

marital offences and offences relating to coins and government stamps.

Punishments prescribed under the Penal Code are: death, imprisonment

(simple and rigourous), whipping, forfeiture of property and fine.

The principal general exceptions to criminal liability recognised by the

Code are: insanity, intoxication, necessity, duress and private defence.

The minimum age of criminal responsibility is eight years.  A child

under eight years of age is considered incapable of possessing `mens

rea’.  Those over eight years but under twelve years are not punished

unless they have attained sufficient maturity.

As for criminal procedure, the first law of this kind was the Criminal

Procedure Code of 1882, which was replaced by the Criminal Procedure

Ordinance of 1898.  In 1974, the Administration of Justice Law was

introduced but it was only operated for 4 years.  The present law is the

Code of Criminal Procedure Act, which was enacted in 1979.  Also, the

Judicature Act was enacted in 1978, which provides the basis of

judiciary administration.

Among other significant crime-related special legislations are: the

Poisons, Opium and Dangerous Drugs Ordinance, the Explosive Ordinance,

the Firearm Ordinance, the Offensive Weapons Act, the Prevention of

Terrorism Act, and the Offences Against Aircraft Act.

As for the courts system, the procedure and functions of the criminal

courts are today governed by the Code of Criminal Procedure Act and the

Judicature Act. The Magistrate’s Court is the criminal court to deal

with most of the offences, and the Primary Court also deals with some

minor criminal cases.

According to the law, certain grave offences such as murder, attempted

murder and rape are tried in the High Court.  A case in the High Court

is handled by judge and jury or by judge alone.  The jury is composed of

7 jurors, elected at random from the jury list.

The appeal or the second instance of criminal trial is conducted by the

Court of Appeal.  The Supreme Court exercise final appellate

jurisdiction as well as special jurisdiction for alleged violations of

fundamental rights and freedom guaranted under the Constitution.  The

Supreme Court consists of 11 justices including the Chief Justice.

The justices of the Supreme Court and the judges of the Appeal and High

Courts are appointed by the President; the judges of the lower courts

are appointed by the Judicial Service Commission.  The Commission is the

judiciary administrative body which is composed of three Supreme Court

Justices headed by the Chief Justice.

Most of the prosecution against criminal cases are conducted by the

investigation officers, namely the police themselves.  However, as far

as those serious offences to be tried in the High Court are concerned,

or whenever it deems necessary, the public prosecutors, who are entitled

as the State Councils or the State Attorneys, shall prosecute the cases.

These public prosecutors are under the Attorney-General’s Department and

supervised by the Attorney-General, who is appointed by the President.

SANCTIONS

Punishments prescribed under the Penal Code are: death, imprisonment

(simple and rigourous), whipping, forfeiture of property and fine.

According to the Third United Nations Survey however, statistical data

are not available with regard to death penalty, whipping and property

sanctions such as fine and forfeiture.

OVERCROWDING IN PRISONS

It was recorded that, in 1986, 384 unconvicted persons per 100 000

population and 91 convicted persons were admitted into prisons.  The

number of admissions of the unconvicted inmates was more than 4 times

larger than that of the convicted inmates.  In terms of the daily

average population, the number of unconvicted inmates was 1.3 times

larger than that of the convicted inmates.  It is therefore considered

that overcrowding in prisons is mainly due to the large number of

unconvicted inmates, or remand prisoners.

It is said that the reason for overcrowding of remand prisoners is

mostly due to the delays in bringing the offenders to trial, which is

commonly known as `court delays’ in Sri Lanka.  It is also mentioned

that inadequate use of bail provisions have contributed to the increase

in the remand population.  It is common to see a large number of inmates

detained in jails for their inability to furnish the bail ordered to

them.

Another cause of overcrowding in prisons is the large portion of short-

term prisoners.  In fact, it is found that of persons convicted to

prisons in 1987, 61.6% were sentenced to less than 6 months.

Reportedly, still another reason for the increase of prison population

is the large number of persons admitted into prison for the default of

payment of their fines.

Therefore, various countermeasures against prison overcrowding are

researched and studied jointly by agencies in the field of criminal

justice in Sri Lanka. Among the suggested countermeasures are: limited

use of remand in prisons, increased use of release on personal bond,

modification of penal sanctions, active use of alternatives such as

probation and community service order.

FACILITIES FOR JUVENILE DELINQUENTS AND PROTECTION OF JUVENILES

There are various facilities for the protection and rehabilitation of

delinquent and pre-delinquent juveniles.  It could be summarised as

follows:

In order to facilitate the rehabilitation of delinquents and pre-

delinquent juveniles, whose home circumstances are disorganised, the

legal provision exists for the approval of private residences as

accommodation where necessary care and protection may be provided for

these delinquent juveniles.  There are now over 200 voluntary homes in

Sri Lanka and the government pays monthly `per capita grant’ for their

services.

There are also day-care centres for orphans, destitutes or deserted

children, with the assistance granted by the Department of Probation and

Child Care Services.

There are institutions run by the government and other voluntary

organisations, which provide protection especially to the juveniles who

fall into the category of `Protection Service’.  There are state-run and

voluntary institutions throughout the nation.

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LEGAL SYSTEMS IN SRI LANKA

1.1. Historical PerspectiveSri Lanka being a multiracial and multilingual country the legal systems reflect the customs of the various communities which go to form Sri Lankan Society. As in other ancient legal systems the conventions, customs, sanctions and the main concepts of law though not concretely formulated, have over the passage of years been established, especially with judicial pronouncements made from time to time.

1.2.  Personal and Territorial Legal Systems of Sri Lanka

The personal laws that govern the various sections of our community are, Kandyan Law, Thesawalamai and Muslim Law. Kandyan Law applies as a personal law to Kandyan Sinhalese. Likewise Muslim Law applies to Muslims as their personal law. Thesawalamai is, essentially, a customary law which is both territorial and personal in character. The former characteristic of this law manifests itself by the fact that it is applicable to all lands situated in the Northern Province (whether such land is owned by a Sinhalese, Tamil, Muslim or Burgher). The latter characteristic, on the other hand, results in Thesawalamai being applicable, as a personal law, to Tamils who have an inhabitancy in the Northern Province. Various tests are applied to determine whether these personal laws affect those claiming to be governed by them. Persons subject to any of these three personal laws are governed in other respects by the Roman Dutch Law, which is the Common Law of the country. However the impact on the Common Law System derived from the English Law has had a much greater influence on the Laws of Sri Lanka than the Roman tradition. Yet, the Roman Dutch Law remains the residuary or the common law of Sri Lanka. Needless to say the Common Law has been modified in many directions, both expressly and by necessary implication by our statute law and also by judicial decisions. Criminal Law and Procedure in Sri Lanka is governed by the Penal Code and the Criminal Procedure Code. Civil cases are governed by the Civil Procedure Code, which shows the influence of Indian, English and American rules of procedure. The Constitutional and Administrative Law of Sri Lanka has been derived predominantly from the Anglo-American System while the Commercial Law of Sri Lanka is almost wholly based on the principles of English Commercial Law. The influence of the Roman-Dutch Law is to be found in the areas of the law relating to succession, persons, property and obligations. It is specially noteworthy that the Law of Delict (that is the law governing civil wrong-doing) is predominantly based on the Roman-Dutch Law.

1.3   Structure of the Courts

The hierarchy of Courts of first instance in Sri Lanka is set out in Section 2 of the Judicature Act No. 2 of 1978. Primary Courts, Magistrate’s Courts, District Courts and High Courts are Courts of first instance. High Courts exercise appellate and review jurisdiction in some matters. The Court of Appeal and the Supreme Court are the Appellate Courts.

1.4.  Primary Courts and Magistrate’s Courts

The Primary Court is the lowest Court of first instance. It has limited powers to impose a sentence of imprisonment and of fines. This Court has limited jurisdiction both in relation to civil and criminal disputes. One of the most important subjects, which is very frequently invoked in a Primary Court is Section 66 of the Primary Courts Procedure Act which deals with inquiries into disputes affecting land, where a breach of the peace is threatened or is likely. The monetary jurisdiction of a Primary Court does not exceed one thousand five hundred rupees. The Magistrate of the area acts also as a Primary Court Judge. Magistrate’s Courts exercise original jurisdiction in criminal cases subject to limitations on their powers to impose punishments. They also conduct non-summary proceedings before indictment to the High Court. There is a right of appeal and revision from a Magistrate’s Court to the High Court in the first instance and thereafter to the Court of Appeal or the Supreme Court in the second instance. In some cases where appeal is made to the Court of Appeal an appeal lies from the order of the Court of Appeal to the Supreme Court if leave is obtained. A Magistrate’s Court can impose a sentence of imprisonment for a period not exceeding eighteen months and impose a fine not exceeding one thousand five hundred rupees; Several offences under various statutes are also triable by the Magistrate’s Courts.

[Although the law has been amended creating Small Claims Courts to replace the Primary Courts and to exercise jurisdiction in small claims and offences, those provisions of the law have not been brought into operation.]

1.5. DISTRICT COURTS

District Court has unlimited civil jurisdiction in all civil, revenue, trust, insolvency and testamentary matters. The jurisdiction of the District Courts in relation to family matters was removed and Family Courts were established to deal with such matters. With the enactment of the Judicature (Amendment) Act No.71 of 1981, the District Courts are deemed to be the Family Courts. The jurisdiction in respect of causes of action arising out of commercial transactions and a few matters under the specified provisions of the Code of Intellectual Property Act and the Companies Act is now vested in the Commercial High Court (please see paragraph 1.7 below). There is a right of appeal and revision from orders and judgments of District Courts to the Court of Appeal and an appeal thereafter, with leave obtained, to the Supreme Court.

1.6.  HIGH COURTS

The High Court of Sri Lanka established under the Constitution has power and authority to hear, try and determine all prosecutions on indictment. It has criminal and admiralty jurisdiction and also jurisdiction in regard to offences committed aboard aircraft and within the territorial air space. A High Court trial can be either by the High Court Judge alone or with a jury. It also can hold a Trial-At-Bar where three Judges nominated by the Chief Justice sit in judgment. A party aggrieved by a decision of the High Court can appeal to the Court of Appeal and the Appeal is heard by a Bench of not less than two judges. The High Court is empowered to pass death sentence, life imprisonment and impose fines and give other redress as laid down. In addition to the High Court of Sri Lanka originally established under the Constitution the 13th Amendment to the Constitution also established a High Court for each province designated as the High Court of the relevant Province and such High Court is now vested with (a) Original criminal jurisdiction in respect of offences committed within the Province; (b) appellate and revisionary jurisdiction in respect of convictions, sentence and orders made or imposed by Magistrate’s or Primary Courts within the Province; (c) such other jurisdiction and power as the Parliament may provide by law; (d) power to issue Orders in the nature of Habeas Corpus in respect of persons illegally detained within the Province; (e) power to issue Orders in the nature of Writs of Certiorari, Prohibition, Procedendo, Mandamus and Quo Warranto in respect of any matter set out in the Provincial Council List; and (f) power to inspect and report on the administration of any Court of first instance within the Province as may be delegated by the Judicial Service Commission. (Please also see paragraph 1.7. and 1.12. below).

1.7.  COMMERCIAL HIGH COURT

The High Court for the Western Province is vested with exclusive jurisdiction in respect of some specified commercial matters in terms of the High Court of the Provinces (Special Provisions) Act, No. 10 of 1996 and it was ceremonially opened by the Minister of Justice and Constitutional Affairs on 11th October 1996.The Western Provincial Commercial High Court is vested with Provincial jurisdiction in respect of the following matters with effect from 11th October 1996:

*      All actions where the cause of action has arisen out of commercial transactions  including causes of action relating to Banking, Export or Import of merchandise,  services affreightment, insurance, mercantile agency, mercantile usage, and the construction of any mercantile document in which the debt, damage or demand is for a sum exceeding Rs.3 Million;

*      All applications and proceedings under sections 31, 51, 131, 210 and 211 of the Companies Act No. 17 of 1982 i.e. actions to relieve a Company of the consequences of non compliance with the conditions constituting it a private company – s.31, actions to make irregular allotments void and actions to recover loss, damage or costs incurred as a result of such irregular allotments – s. 51; actions for a Court to order a meeting of a Company to be held as  specified where compliance with the Articles of the Company or the provisions of the Companies Act is impracticable – s.131; applications complaining against oppression in the conduct of the affairs of a company – s.210; applications complaining of mismanagement – s. 211.

*     All proceedings under the Code of Intellectual Property Act No.52 of 1979 other than proceedings required to be taken in terms of this Act in the District Court of Colombo.

This Court however will not have jurisdiction in respect of actions instituted under the Debt Recovery (Special Provisions) Act No.2 of 1990.

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

[The High Court of the Provinces (Special Provisions) Act No. 10 of 1996 also includes provision for the Minister to make an Order vesting in the Western Provincial High Court all island jurisdiction in respect of actions seeking an injunction against the Registrar of Companies or the Securities Exchange Commission all proceedings required to be taken in the District Court of Colombo under the Code of Intellectual Property Act No. 52 of 1979 and all appeals required to be made under Section 17 of the Fair Trading Commission Act No. 1 of 1987. The making of an Order for this purpose by the Minister in the Gazette appears to have been deferred as the Ministry wishes to assess the working of the new Court and then decide on that aspect.]

The appeals against the orders and judgments of this Court can be made directly to the Supreme Court.

1.8 COURT OF APPEAL

The Court of Appeal established by Chapter XV of the Constitution is constituted of not less than six and not more than eleven judges. It has appellate jurisdiction for the correction of all errors of fact or law which shall be committed by any Court of first instance and also revisionary powers and powers relating to restitutio in integrum. It also has the power to issue Writs of Certiorari, Mandamus, Prohibition, Procedendo Quo Warranto, and Habeas Corpus and also to issue injunctions and examination of records of courts of first instance. It also tries parliamentary election petitions. There is a right of appeal from this Court to the Supreme Court (subject to the provisions in Article 128 of the Constitution) with leave had and obtained.

1.9.   SUPREME COURT

The Supreme Court is the highest and final appellate court of the Republic of Sri Lanka consisting of the Chief Justice and not less than six and not more than ten other judges. It 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 His Excellency the President. Both the Supreme Court and the Court of Appeal have the power to punish for contempt of such Court and the power to punish for contempt of any other court, tribunal or institution.

1.10. ADMINISTRATIVE TRIBUNALS

Apart from this hierarchy of the Courts as set out above there are a number of Administrative Tribunals such as the Rent Board of Review, Rent Boards, Ceiling on Housing Property Board of Review, Land Acquisition Board of Review, Quazis and Boards of Quazis, Agricultural Tribunals, Court Martials, Labour Tribunals, which perform functions of a quasi-judicial nature. Their decisions are capable of revision by the Appellate Courts by way of Writs or appeals as provided by the various enactment’s by which each of these Tribunals have been established.

1.11. MEDIATION BOARDS

By the Mediation Boards Act No. 72 of 1988, Parliament has established Mediation Boards in various areas in Sri Lanka. A Commission appointed under this Act appoints a panel of mediators who have been vested with power to mediate on certain criminal and certain civil matters, where the State, a public officer or the Attorney General is not involved as a party. The Mediation Boards have the power to issue certificates, non settlement without which no Court of first instance could entertain any action in relation to movable or immovable property, debt, damage or demand which does not exceed Rs.25,000/- in value, matters not specified in the third schedule to the said Act or offences failing within those specified in the second schedule to the Act. The main function of Mediation Boards is to act like a mediator to settle disputes amicably.

1.12. ARBITRATION ACT

The Parliament enacted the Arbitration Act No. 11 of 1995 which came into operation on 1st August 1995 as a measure providing for a comprehensive infrastructure for resolving commercial disputes, domestic as well as international, through arbitration. This Law was enacted honouring Sri Lanka’s obligation to give effect to the New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards of 1958. An application for recognition or enforcement of an arbitral award – local or foreign – can be made to the appropriate High Court within one year after the expiry of 14 days of the making of the award.

In view of this Act if a party to an arbitration agreement institutes legal proceedings in a Court against another party to such agreement in respect of a matter agreed to be submitted to arbitration in such an agreement; the Court will have no jurisdiction to hear and determine such matter if the other party objects to the Court exercising jurisdiction in respect of such matter.

There are two Arbitration Centres in Sri Lanka. One is known as the Sri Lanka National Arbitration Centre and the other the Institute of Commercial Law and Practice, Centre (ICLP). The second Institute has its own rules governing arbitrations but in both the Centres parties could conduct arbitration proceedings under other rules agreed upon by parties,

The Courts give full recognition to arbitration clauses by not permitting its jurisdiction to be invoked unless parties consent or parties only confine it to obtaining interim orders pending the arbitration proceedings.

The Arbitration rules mostly accepted in international transactions are the ICC rules and the UNCITRAL rules of arbitration. However the local enterprises prefer ad hoc methods of arbitrations in local contractual matters.

1.13. ENFORCEMENT OF FOREIGN JUDGMENTS

Judgments entered by Courts in some foreign countries can be enforced under the Reciprocal of Enforcement of Judgments Ordinance.

Those covered by the Reciprocal Enforcement of Judgments Ordinance are United Kingdom of Great Britain, Northern Ireland, Hongkong, Mauritius, New South Wales, Straits Settlements; Tanganyika, Uganda, Victoria, Federation of Malaya, Australian Capital Territory, Northern Territory of Australia, New Zealand (including the Cook and Nicue Islands) and the Trust Territory of Western Samoa, Queensland, Western Australia, South Australia and Tasmania.

1.14. LEGAL RATE OF INTEREST

Section 192 of the Civil Procedure Code (as amended by the Act No. 6 of 1990) provisos that –

“When an action instituted for recover of a sum of money due to the plaintiff, in that action the Court may in the decree order interest according to the rate agreed on between the parties by the instrument sued on, or in the absence of any such agreement at the legal rate, to be paid, on the principal sum adjudged from the date of action to the date of the decree, in addition to any interest adjudged on such principal sum for any period prior to the institution of the action, with further interest at such rate on the aggregate sum so adjudged from the date of the decree to the date of payment, or to such earlier date as the Court thinks fit.”

For the purposes of this section 192 “the legal rate” is defined to mean the rate per centrum per annum determined by the Monetary Board established by the Monetary Law Act, by Notification published in the Gazette, having regard to current rates of bank interest.

Where such decree is silent with regard to the payment of further interest on such aggregate sum as aforesaid from the date of the decree to date of payment or other earlier date, the Court shall be deemed to have refused such interest, and a separate action therefor shall not lie.

source =http://www.mnlaw.lk/pages/LEGAL_SYSTEMS.html

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Supreme Court of Sri Lanka Decisions ,from 1978-2005 ….

http://www.commonlii.org/lk/cases/LKSC/

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Courts in Sri Lanka

The Supreme Court of Sri Lanka is the highest judicial instance. The court consists of the Chief Justice and not less than six and not more than ten other Judges, appointed by the Constitutional Council on ecommendation of the President, for a lifetime period (65). The Court is the final appellate Court and has jurisidiction in constitutional matters.

Supreme Court of Sri Lanka

The Appeal Court hears appeals from the High Court and any court of first instance. According to art 137 of the constitution, the court consists of the President of the Court and not less than six and not more than eleven other Judges.

Court of Appeal

The High court has original jurisdiction for all prosecutions on indictment, admirality jurisdiction and commercial jurisdiction. Next to it’s original jurisidiction the High Court has appellate and revisionary jurisdiction in respect of convictions, sentences, orders entered or imposed by Magistrate’s courts and Primary courts within the Province and hears appeals from Labour Tribunals, Agrarian tribunals and Small Claims Courts. The High Court consists of not less than ten and not more than Forty Judges [Article 111 of the Constitution] Judges of the High Court are appointed by the President on the recommendation of the Judicial Service Commission made after consultation with the Attorney General. Judges of the High Court are removable by the President and are subject to disciplinary control by the President on the recommendation of the Judicial Service Commission. The Age of retirement for High Court Judges is 61.

High Court
High Court Anuradhapura
High Court Avissawella
High Court Badulla
High Court Batticaloa
High Court Chilaw
High Court Colombo
High Court Galle
High Court Gampaha
High Court Jaffna
High Court Kalutara
High Court Kandy
High Court Kegalle
High Court Kurunegala
High Court Matara
High Court Negombo
High Court Ratnapura

District Courts are established under the Judicature Act, No. 2 of 1978 for each judicial district in Sri Lanka. The territorial limits of each judicial district is as determined by the Minister in charge of the subject of Justice in consultation with the Chief Justice and the President of the Court of Appeal. There are 54 judicial districts in Sri Lanka. Appeals from judgments, decrees and orders of the District Court lie to the Court of Appeal.

District Courts
District Court Akkraipattu
District Court Amparai
District Court Anuradhapura
District Court Attanagalla
District Court Avissawella
District Court Badulla
District Court Balapitiya
District Court Bandarawela
District Court Batticaloa
District Court Chavakachcheri
District Court Chilaw
District Court Colombo
District Court Embilipitiya
District Court Galle
District Court Gampaha
District Court Gampola
District Court Hambantota
District Court Hatton
District Court Homagama
District Court Horana
District Court Jaffna
District Court Kalmunai
District Court Kalutara
District Court Kandy
District Court Kayts
District Court Kegalle
District Court Kuliyapitiya
District Court Kurunegala
District Court Maho
District Court Mallakam
District Court Mannar
District Court Marawila
District Court Matale
District Court Matara
District Court Matugama
District Court Moneragala
District Court Moratuwa
District Court Mount Lavinia
District Court Mullativu
District Court Negombo
District Court Nuwara Eliya
District Court Panadura
District Court Point Pedro
District Court Polonnaruwa
District Court Pugoda
District Court Puttalam
District Court Ratnapura
District Court Tangalle
District Court Tissamaharamaya
District Court Trincomalee
District Court Vauniya
District Court Walasmulla
District Court Warakapola
District Court Welimada

Every Magistrate’s Court is vested with original criminal jurisdiction (other than in respect of offences upon indictment in the High Court), and is ordinarily empowered to impose sentences upto a fine of Rs. 1,500 and/or 2 years rigorous/simple imprisonment unless power is vested in the Magistrate’s Court to impose higher penalties by special provision. The Primary Courts are the courts of first instance. There are seven Primary Courts, located in Anamaduwa, Angunukolapelessa, Kandy, Mallakam, Pilessa, Wellawaya and Wennappuwa. In the other divisions, the Magistrate’s Courts exercise the jurisdiction of the Primary Courts. The Primary Courts have crimininal and civil Jurisdiction. (claims not exceeding 1,500) Appeals from convictions, sentences or orders of Magistrate’s Courts within a Province lie to the High Court of the Province.

Magistrate’s Courts
Magistrate’s Court Akkraipattu
Magistrate’s Court Amparai
Magistrate’s Court Anuradhapura
Magistrate’s Court Attanagalla
Magistrate’s Court Avissawella
Magistrate’s Court Baddegama
Magistrate’s Court Badulla
Magistrate’s Court Balangoda
Magistrate’s Court Balapitiya
Magistrate’s Court Bandarawela
Magistrate’s Court Batticaloa
Magistrate’s Court Chavakachcheri
Magistrate’s Court Chilaw
Magistrate’s Court Colombo
Magistrate’s Court Dambulla
Magistrate’s Court Elpitiya
Magistrate’s Court Embilipitiya
Magistrate’s Court Galle
Magistrate’s Court Gampaha
Magistrate’s Court Gampola
Magistrate’s Court Gangodawila
Magistrate’s Court Hambantota
Magistrate’s Court Hatton
Magistrate’s Court Homagama
Magistrate’s Court Horana
Magistrate’s Court Jaffna
Magistrate’s Court Kaduwela
Magistrate’s Court Kalmunai
Magistrate’s Court Kalutara
Magistrate’s Court Kandy
Magistrate’s Court Kayts
Magistrate’s Court Kegalle
Magistrate’s Court Kekiwara
Magistrate’s Court Kesbewa
Magistrate’s Court Killinochchi
Magistrate’s Court Krebithigollawa
Magistrate’s Court Kuliyapitiya
Magistrate’s Court Kurunegala
Magistrate’s Court Maho
Magistrate’s Court Mallakam
Magistrate’s Court Mannar
Magistrate’s Court Marawila
Magistrate’s Court Matale
Magistrate’s Court Matara
Magistrate’s Court Matugama
Magistrate’s Court Mawanella
Magistrate’s Court Minuwangoda
Magistrate’s Court Moneragala
Magistrate’s Court Moratuwa
Magistrate’s Court Morawaka
Magistrate’s Court Mount Lavinia
Magistrate’s Court Mullativu
Magistrate’s Court Mutur
Magistrate’s Court Nawalapitiya
Magistrate’s Court Negombo
Magistrate’s Court Nuwara Eliya
Magistrate’s Court Panadura
Magistrate’s Court Point Pedro
Magistrate’s Court Polonnaruwa
Magistrate’s Court Pugoda
Magistrate’s Court Puttalam
Magistrate’s Court Ratnapura
Magistrate’s Court Ruwanwella
Magistrate’s Court Tangalle
Magistrate’s Court Teldeniya
Magistrate’s Court Thambuththegama
Magistrate’s Court Tissamaharamaya
Magistrate’s Court Trincomalee
Magistrate’s Court Vauniya
Magistrate’s Court Walasmulla
Magistrate’s Court Warakapola
Magistrate’s Court Wariyapola
Magistrate’s Court Wattala
Magistrate’s Court Welimada

=======================================================================

ARBITRATION IN SRI LANKA

by S.S Wijeratne , Secretary General, ICLP Arbitration Centre

I consider this award ceremony for the first class of successful participants in the commercial arbitration diploma course of the Institute of Commercial Law as a historical step on modernizing arbitration in Sri Lanka.

Sri Lanka has a rich tradition of dispute resolution going back to over two thousand five hundred years.

Her recorded history which dates back to that period, and other sources mainly  pre—Christian rock inscriptions, indicate that migrants from India , some of whom were trading groups, began settling in Sri Lanka from about the  fifth century BC.1 The expansion of these Indo-Aryan settlements and the development of foreign trade first  with the assistance of Indian ports and  on her own enabled early Sri Lanka traders to adopt and apply concepts of justice then prevailing in the civilized world.

As was the case with ancient India, village communities or Gam sabha administered justice with the assistance of an elected leader or Gamini sometimes referred in inscriptions also as Maparumaka, According to historians popularly elected leaders preceded the evolution of monarchy in Sri Lanka 2. The village Communities as well as the Kings were conditioned by the established traditions of justice which were mostly influenced by the Buddhist ethics. The emphasis was on amicable settlement of disputes and not on litigation. According to the historical chronicle Mahawamsa equal protection of the law even extended to include the animals.

The system of justice administered by the ancient Kings of Sri Lanka continued until the r conquest of her maritime provinces first by Portuguese in 1505,then by the Dutch in 1656 and finally by the English in 1796. The English captured the entire island in 1815.n powers. The Portuguese rule is not credited with introduction of any legal reforms but on the contrary the Dutch revamped the legal system of Sri Lanka with the introduction of the Roman Dutch law as the common law of the Maritime Provinces.

The British following their legal principle of retaining the existing laws of the capture colonies retained Roman Dutch Law as the common law of the country.3.The local personal laws; Thesavalami, Kandiyan law and the Muslim law were also retained, but any lacunae in the laws were to be supplemented by the English legal statutes as appropriate. Induction of English law specially in to the areas of commerce was further facilitated by the two factors, firstly that the language of the courts was English and the early  judges were invariably British who only knew only English law.

In the year 1832. following the  recommendation n of Cameron’s Commission a Charter of Justice  was enacted in 1833 which laid the foundation for a vexatious system of procedure in the civil courts. The procedure was adversarial and not conciliatory. Parties had to adopt confrontational attitudes opposing each other. The Judges and the Pleaders were foreigners. English which the people did not understand was the language of the Courts. Law suits were conducted in English; presented mostly by members of the Burgher Community (descendants of the Dutch conquerors) who then monopolized the legal profession in view of their knowledge of English and were determined by British Judges. The Sri Lankan peasantry was overwhelmed and had no choice but acquiesce in the adversarial legal cloture. Even though Cameron’s avowed objective as to establish equality before the law, but the access to courts for the village peasants was long and tedious.

Despite the disaffection of the large mass of population towards the British legal imposistions, the colonial power continues to introduce English legal system in number of forms. According to Weeramanthy the principle avenues of entry of English law to the Sri Lankan legal system were;

(a)   Through statutes which embody rules and principles of English law

(b)  Through statutes which enact that the law governing a specific subject matter      shall be the English law

(c)   By tacit adoption through judicial decision

(d)    By tacit adoption of use of words and phrases of English law 4.

Among the legal practices that crept in to Sri Lankan law, especially in the commercial field was arbitration. Even though, Arbitration was a legal dispute resolution method in the Roman law it did not find its way in to Roman Dutch law as was practiced in Sri Lanka. Arbitration was deliberately introduced by the British as a less formal dispute resolution mechanism in 1866 by the adoption of the Arbitration Ordinance No.15 of 1866.

This system which could not serve the litigant even in those days was expected to serve the multifarious needs of today. In the civil courts of original jurisdiction in Colombo, Commercial matters now have dominance over all others; cases relating to land are hardly ever heard of. The Courts are called upon daily to decide upon a myriad of complex disputes arising from commercial, corporate, mercantile relations between parties as well as mundane matters such as recovery of debts; from an anti monopoly case to a case for merely recovering the money due for goods sold and delivered are all before those Courts today. The present legal system of Sri Lanka is not equal to such a task; even when viewed from the most basic maxim, that “Justice Delayed is Justice Denied”.

Prior to the enactment of the Act No 11 of 1995, Arbitration was formally linked to the legal system of Sri Lanka in the 19th century by the enactment of two statutes viz:—

(I)                 The Arbitration Ordinance No. 15 of 1866, and

(ii)                The Civil Procedure Code of 1889.

Under these two statutes Arbitration was categorized into two groups:—

(a) Voluntary, and

(b) Compulsory

Whilst the Arbitration Ordinance dealt only with compulsory Arbitration the Civil Procedure Code governed both types of Arbitration.

The liberalization of the economy, the privatization of state enterprise and the commitment of the Government of Sri Lanka to encourage foreign investment in this country, have resulted in a continuous inflow of foreign capital into the country.

The legal system and the procedure before Courts prior to the enactment of the Arbitration Act in 1995, fell short of the requirements of such liberalized economy and inflow of foreign investment; the method of litigation being adversarial the parties thereto invariably and incessantly confront each other in such proceedings and try to win every possible point. This is partly due to the inordinate and intolerable delays in the conclusion of litigation. Each party therefore, tries to achieve a position of strength in the litigation, however temporary that may be, and endeavors to negotiate therefrom a settlement using the position of strength achieved even temporarily as the bargaining power. Such settlements are very common, ironically in heavily contested cases because the final conclusion is so far away and the parties are exhausted long before that both financially and time wise.

This however is gradually changing and parties are seeing the advantages of arbitration as against litigation and arbitration clauses are being increasingly inserted into commercial contracts.

The Institute for the Development of commercial Law and Practice (ICLP), a private body set up solely for the purpose of developing commercial law in Sri Lanka, assisted the Government of Sri Lanka, to enact this modern arbitration law with the co-operation and financial assistance of the Government of Sweden.

The said Arbitration Act is a modern law based on the UNCITAL Model Law and the draft Swedish Law of the time and basically incorporates the following:-

  • A  valid arbitration constitutes a bar to Court Proceedings
  • Court intervention is minimized in that it plays only a supportive role to arbitration proceedings
  • Once the arbitral award has been rendered there can be no review  of the merits and the award may be set aside only on very narrowly defined procedural grounds
  • The acceptance of party autonomy to the largest extent possible
  • A party who does not participate in the proceedings cannot prevent the proceedings  from continuing
  • An efficient enforcement procedure for both local and foreign awards

After the enactment of this modern legislation, the ICLP established the ICLP Arbitration Centre also with the financial and technical assistance of the Government of Sweden, which is a separate body within the ICLP, established to enable the businessmen to make the best use of the law.  The Rules of the Centre are modeled on the Rules of the Arbitration Institute of the Stockholm Chamber of Commerce and facilitates the resolution of commercial disputes in a speedy, cost-effective, confidential and efficient manner up to international standards.

ICLP is presently focusing its attention on developing and promoting arbitration in the South East Asian region. Businessmen in these cities are compelled to go to arbitration to European Cities due to the lack of international arbitration centers in the region and are at a disadvantage because of the prohibitive costs involved in international arbitration’s conducted out side the region. This, from a local point of view is very costly and often compels the local investor to concede over an issue rather than undergo the high cost of having it resolved by arbitration.

Usually parties to a commercial dispute who wish to resort to arbitration proceedings for resolution of their disputes wish to have the arbitration proceedings conducted at a neutral venue rather than in the country in which the investment was made and in the respective countries of the parties to the dispute. Such parties to commercial disputes both foreign and local in other countries in the region may well choose Colombo as the neutral venue.

Colombo has an abundance of personnel literate in English, five star hotels, modern telecommunication facilities and expeditious services to conduct arbitration proceedings. Thus, Colombo is an ideal neutral venue for arbitration of commercial disputes arising in the other countries in the region.

Sri Lanka is also a party to the New York convention which enables the enforcement of arbitral awards made in Sri Lanka in any other country which is also party to the convention.

Thus, our vision is that more arbitration centers of international standard are established in the region and there will be lawyers and commercial people itinerant from center to center enabling parties to commercial disputes which arise in the region to choose any one of such center and thereby alleviate the disadvantages they now suffer by the lack of such centers.

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