Sri Lanka is an island nation south of India. It is known as the “Pearl of the Indian Ocean” because of its natural beauty, including lush forests, coastline, and vast tea plantations. Sri Lanka is a multi-party democracy with approximately 22 million inhabitants. A majority of the country, 74.9 percent, is Sinhalese and 11.2 percent is Sri Lankan Tamil. Other ethnic groups include Muslims (9.7%), Burghers (a Eurasian ethnic group), and Veddhas (aboriginal natives). Sinhala and Tamil are the official national languages though English is widely spoken. Buddhism is the state religion but Hinduism, Islam, and Christianity are also practiced.
Indian settlers arrived on the island in the 5th century BC. The country, called Ceylon until 1972, became a hub of maritime trade for the early Greek, Roman, Arab, and Chinese empires. The Portuguese arrived in 1505, introduced Catholicism, and established a monopoly over many native resources including spices, nuts, and elephants. In the late 16th century, the Dutch asserted commercial dominance over the country and established a court system following Romano-Dutch law.
The Civil War
During British rule, existing ethnic tensions between the Sinhalese and Tamil communities were exacerbated. The colonial government instituted policies that accorded preferences to Tamil citizens, including greater economic and educational opportunities. After independence, the Sinhalese majority enacted legislation preferential to the Sinhalese and limiting the rights of Tamil citizens. In the 1980’s, some members of Sri Lanka’s Tamil minority initiated an insurgency with bases in the jungles of the north and the east. Rebel groups demanded the creation of an independent Tamil nation. The most well-known group was the Liberation Tigers of Tamil Eelam (LTTE or Tamil Tigers), a guerilla organization that used violence, including suicide bombings. LTTE activities extended beyond Sri Lanka’s borders and it was designated a terrorist organization by many countries.
International human rights organizations have documented reports of violent government retaliation during the war, including disappearances of Tamil citizens. In July 1983, government-enabled mobs killed 3,000 Tamils and destroyed over 20,000 homes and businesses, displacing more than 100,000 people. Atrocities were reported and half a million Tamils fled the country.
The civil war officially ended in 2009 with the army’s defeat of LTTE. Over 100,000 Sri Lankans on both sides of the conflict were killed. In 2015, the government of Sri Lanka proposed the creation of justice commission to address the violence and trauma inflicted by the war. In 2023 a bill was introduced to establish the Commission for Truth, Unity and Reconciliation. It has not yet been enacted.
Sources of Law
The Sri Lankan legal system follows the common law model. The primary sources of law include the Constitution, Civil Procedure Code, Criminal Procedure Code, Evidence Ordinance, Penal Code, the Judicature Acts, and precedent. The country also recognizes three types of customary law: Muslim, Kandyan and, Thesavalamai. These laws govern family matters and apply to specific groups (Muslims, those tracing their lineage to the kingdom of Kandy, and Jaffna Tamils).
Court System
The Sri Lankan judiciary has a national court system with a Supreme Court, Court of Appeal, High Court, Provincial High Court, District Courts, Magistrates’ Courts, and Primary Courts. There are also specialized tribunals.
Supreme Court
The Sri Lankan Supreme Court has final appellate jurisdiction over cases from the lower courts as well as jurisdiction over constitutional matters, cases asserting fundamental rights, election petitions, and cases involving misconduct by members of Parliament. The Court exercises writ jurisdiction and supervisory jurisdiction over the lower courts. Appeal to the Supreme Court may be taken with permission of the Court of Appeal or special permission of the Supreme Court. Review is discretionary: the Court only agrees to hear cases involving significant questions of law.
Although there is no power of judicial review in Sri Lanka’s constitution, a petition may be filed in the Supreme Court for ‘Pre-enactment Review’ to ensure that proposed legislation is consistent with the constitution. The Supreme Court also has consultative jurisdiction: the President may refer a question of public importance to the Court for an opinion. Parliament may request Supreme Court review regarding the competency or conduct of the President.
There are 17 positions on the Court, including the Chief Justice. Cases are heard by a panel of at least three judges, but the Chief has the authority to assign five or more judges to a case.
Fundamental Rights Jurisdiction
Sri Lanka’s 1978 Constitution included for the first time an enforceable Bill of Rights with provisions for judicial remedies. Both the Supreme Court and the Court of Appeals have authority to issue writs, including mandamus and habeas corpus. The Supreme Court, however, has exclusive jurisdiction to enjoin public entities from violating fundamental rights set forth in the Constitution. For example, in 1993, thousands of individuals wrongfully detained in the Boosa Detention Camp sent letters to the Supreme Court requesting their release. There was no established court process for converting letters into a legal action. However, following the practice of India’s Supreme Court, the Court reviewed the letters as petitions and ordered the release of individuals who submitted prima facie evidence that their detention was unlawful, violating their fundamental rights. This procedure (recognizing a legal action based upon an informal submission to the Court) was later incorporated in Sri Lanka’s Supreme Court Rules.
Court of Appeal
There is a single Court of Appeal sitting in Colombo. It hears appeals from the High Court, petitions challenging parliamentary elections, writ petitions including habeas corpus, and has the power to inspect the records of the first instance courts and consider significant newly discovered evidence. The Court of Appeal can also exercise powers of ‘revision’ to quash a lower court’s order based upon an error of law. The court has the power to issue injunctions, including a stay of lower court proceedings until a revision application is heard.
There are 20 justices on the court, including the Court's President. Many cases are heard by a single judge, others by a panel.
High Courts
There is a High Court in Colombo as well as provincial high courts, with a total of 95 judges. The High Court has first instance jurisdiction over serious criminal cases and cases involving admiralty, child abduction, and offenses committed aboard aircrafts within the country’s territorial airspace. The High Court of Commerce hears commercial matters over a certain value and intellectual property disputes. In the majority of cases, High Court judges preside alone. At the discretion of the Chief Justice, the Court may also hear cases in a panel of three judges nominated by the Chief. The Judicature Act provides for jury trials in the High Court.
Jury Trials
The right to a jury trial is codified in Section 161 of the Criminal Code. Jury trials are heard by the High Court and limited to certain types of serious criminal offenses including murder and charges against the government. The accused may opt for either a jury or judge trial. Seven jurors selected from the community hear cases and a conviction requires the vote of 5 jurors. The jurors are selected by casting lots and the defense is entitled to two objections. The Constitution assigns the Supreme Court authority over “the manner in which panels of jurors may be prepared, and the mode of summoning, empaneling and challenging of jurors.”
District Courts
There is a district court in each of the country’s 54 districts. They have first instance jurisdiction: over all civil cases within their territory including matrimony, adoption, trusts and estates, bankruptcy, land disputes, and accident/insurance cases.
Magistrate & Primary Courts
There is a Magistrates Court in each of the 74 judicial districts. They also have first instance jurisdiction but limited to minor criminal offenses (those that may result in imprisonment of less than two years or a modest fine) as well as offenses related to elections, the armed services, and other legislatively determined offenses such as those related to food safety and traffic.
Magistrates hear the majority of criminal cases in Sri Lanka. They have authority to issue search warrants, arrest warrants, and hear bail applications. There are four types of magistrate judges: Chief Magistrate (only in Colombo), Magistrate, Additional Magistrate, and Unofficial Magistrate. An Unofficial Magistrate is an attorney with at least 15 years of experience who serves as a Justice of the Peace and may perform magistrate duties, except presiding over trials. Unofficial Magistrates are appointed by the Minister of Justice.
Sri Lanka has 7 Primary Courts with first instance civil and criminal jurisdiction that function as part of the Magistrate Court system.
Sri Lanka has just over 250 magistrates and district court judges.
Guilty Pleas
Sri Lanka has not adopted a formal plea-bargaining system, though the Justice Ministry is considering introducing the practice. However, the Code of Criminal Procedure, Section 207, provides that an accused can plead guilty to a lesser offense, with the prosecution’s consent. If the judge agrees that this plea is in the interest of justice, the court will record the plea and the original, more serious offense will be dismissed.
Administrative Tribunals
Sri Lanka has a number of administrative tribunals with jurisdiction over rent review, land acquisition, agriculture, labor, and courts martial. Their judgments can be appealed by way of writ to the appellate courts. There is also a Board of Quazis that applies Islamic family law.
Judicial Selection and Tenure
Sri Lanka’s Constitution guarantees judicial independence and the 19th Amendment sets forth the judicial selection process.
Institutions for Judicial Selection
The Constitutional Council was established by constitutional amendment in 2000. It is an independent body intended to serve as a bridge between the executive and legislative branches. It is tasked with recommending and approving nominees to important government posts, including the president’s recommended court appointments. The Council is chaired by the Speaker of Parliament. Its other 9 members include: the Prime Minister, leader of the opposition, four members of parliament, and three representatives from civil society.
The Judicial Service Commission is responsible for the appointment, promotion, transfer, discipline, and removal of lower court judges. The Chief Justice chairs the Commission. The Sri Lankan Judges Institute is a body within the Commission.
Supreme Court and Court of Appeals
The Chief Justice, President of the Court of Appeal, and all of the judges on both courts are appointed by the President after approval of the Constitutional Council. The Council must consult with the Chief Justice about nominees to the Supreme Court. High Court judges are appointed by the President based upon recommendations from the Judicial Service Commission and the Attorney General.
Lower Courts
All other judges are appointed by the Judicial Service Commission (JSC). A notice of judicial vacancies is posted. Candidates must have a minimum of four years legal practice, though most have 5 – 10 years. They sit for an exam and successful candidates are interviewed by the JSC. Those who pass the interview attend induction training at the Sri Lankan Judges Institute. They spend 10 days in classes in Colombo followed by “bench training,” sitting in court with senior magistrates and district court judges.
The Judicature Act sets forth a mandatory retirement age for all judges: Supreme Court justice must retire at 65 years of age; Court of Appeal judges must retire at 63, High Court judges at 61, and lower court judges at 60. Judges cannot be removed except upon the order of the majority of Parliament.
Civil Pretrial Procedure
In 2023, Sri Lanka implemented a new Pre-Trial procedure that was developed with input from the bar, judges, Attorney General’s Office, and Ministry of Justice. The legislation introduced procedures for Pre-Trial Conferences. Pre-Trial Judges, appointed by the JSC from the district and magistrate bench, preside in special conference rooms. The judges work with the parties to prepare for a more efficient trial by identifying uncontested facts and clarifying legal issues. If possible, cases may be settled during these pre-trial proceedings.
Mediation Boards
In 2023, Sri Lanka implemented a new Pre-Trial procedure that was developed with input from the bar, judges, Attorney General’s Office, and Ministry of Justice. The legislation introduced procedures for Pre-Trial Conferences. Pre-Trial Judges, appointed by the JSC from the district and magistrate bench, preside in special conference rooms. The judges work with the parties to prepare for a more efficient trial by identifying uncontested facts and clarifying legal issues. If possible, cases may be settled during these pre-trial proceedings.
