December 05, 2019
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    Structure of Courts under the 1978 Constitution

    June 27, 2019

    The system of administration of justice that we have now commenced with the Charter of Justice introduced by the British in the year 1801 which constituted the Supreme Court of Judicature in the Island of Ceylon. This brought about for the first time a separation between the Governor who exercised executive and legislative power and the courts which exercised judicial power. Thus, a firm tradition of separation of powers was established which forms the bedrock of the Rule of Law. The Britannica describes a Charter as a document granting specified rights, powers, privileges or functions from the sovereign power of a State to lesser beings or bodies.

    The Charter of 1801 constituted the Supreme Court consisting of two judges - a Chief Justice and a Puisne Justice. The Charter of 1810 extended the jurisdiction of the Supreme Court both civil and criminal ‘to every part of the British settlements in Ceylon’. The system of trial by jury was introduced by this Charter.

    According to Professor K. M. De Silva, Chief Justice Sir Alexander Johnston was the guiding influence behind the new Charter ‘which proved to be inimical to the interests of the executive’. According to the Professor, the new Charter, to the surprise and disappointment of the Governor, strengthened the position of the Chief Justice in relation to the position of the Governor and the instructions accompanying the Charter further enhanced. Dr. Colvin R De Silva describes how Sir Alexander Johnston, the Advocate General of Ceylon, who later became Chief Justice challenged the Commander-in-Chief to a duel.

    The Charter of February 18, 1833 revoked all the Charters and Letters Patent that preceded it. All laws and usages repugnant to it were annulled. The various provincial and other courts of original jurisdiction, the minor courts of appeal and the appellate jurisdiction of the Governor were also abolished. One Supreme Court called ‘the Supreme Court of the Island of Ceylon’ was established. The Court consisted of a Chief Justice and two Puisne Justices who were appointed by Letters Patent issued under the public seal in pursuance of His Majesties Warrants and held office during the pleasure of the Crown.

    For the purpose of territorial jurisdiction the island was divided into circuits. This happened to correspond with the political division of the island at the time into Provinces. The civil and criminal sessions of the Supreme Court were held by one judge in each of these circuits. The criminal sessions were held before a jury of 13 men and a judge. The Ordinance No 20 of 1871 provided for the summoning of special jurors to try criminal cases before the Supreme Court. The Ordinance No 16 of 1880 provided for the appointment of Commissioners of Assize to hold criminal sessions of the Supreme Court in these various circuits. Dr. H.W Tambiah in his book ‘The Judicature of Sri Lanka in its Historical Setting’ describes how Chief Justice Sri Richard Morgan, a distinguished lawyer who later became a judge, has left an interesting account of the preparation of a circuit in Jaffna which according to his Lordship ‘would wet the appetite of an Assize judge in modern times. The Courts Ordinance that came into force in 1890 consolidated the laws with regard to Courts and their powers and established the Magistrate’s Court, the District Court and the Supreme Court.

    This structure continued till the Administration of Justice Law No. 44 of 1973, was enacted in 1973, which established for the first time the High Courts and High Court Zones in this country. The High Courts thus established functioned in the respective zones throughout the country and were not vested with appellate jurisdiction but exercised only the original criminal jurisdiction hitherto exercised by the Supreme Court. The High Court was empowered to hear and determine all prosecutions upon indictments instituted therein by the Attorney General in respect of grave criminal offences.

    Prior to the establishment of the Provincial High Courts in 1987, the court structure in Sri Lanka comprised of two categories of Courts.

    (a) Courts exercising appellate jurisdiction and

    (b) Courts exercising original jurisdiction

    The Supreme Court of Sri Lanka which was at the apex of our judicial structure and the Court of Appeal of the Republic was vested with an appellate jurisdiction. The powers of these two courts are to be found in the Constitution itself.

    The Court of Appeal

    The present Constitution established for the first time the Court of Appeal. The appellate jurisdiction hitherto exercised by the Supreme Court was vested in the Court of Appeal and the Supreme Court was vested among others with Constitutional jurisdiction and jurisdiction as the final appellate court. A two tiered appellate structure was thus created with the first appeal to the Court of Appeal from any original court to be availed of as of right by an aggrieved party and a second appeal to the Supreme Court to be exercised only with leave to be granted in respect of substantial questions of law or where the matter was considered fit for review by the Supreme Court (Article 128 of the Constitution). The High Court remained as a Court of first instance.

    Article 138 of the Constitution identifies the general jurisdiction of the Court of Appeal. Accordingly, this Article vested with the Court of Appeal an appellate and a revisionary jurisdiction in respect of orders made by the Courts of First Instance. The Court was also empowered with restitutioinintegrum jurisdiction. In addition to the powers under Article 138, the Court of Appeal is also vested with power (a) to issue writs (Article 140), (b) to issue writ of habeas corpus (Article 141), (c) to issue orders to bring up and remove prisoners (Article 143), (d) to hear parliamentary election petitions (Article 144) and (e) to inspect records of all courts of first instance (Article 145).

    Prior to the enactment of the 13th Amendment to the Constitution in 1987, any person aggrieved by an order or a judgment of any court of first instance could exercise the first right of appeal to the Court of Appeal and after the order of the Court of Appeal is made, a second right of appeal could be exercised to the Supreme Court. In Sharif & Others v Wickramasuriya and Others, an argument was advanced that by reason of passing of the 13th Amendment to the Constitution and the Act No.19 of 1990, the Court of Appeal no longer enjoyed the jurisdiction to revise orders or judgements of the Magistrate’s Court. This was rejected by the Court of Appeal and it was held by Basnayake J., that the Court of Appeal still exercises a concurrent jurisdiction with the High Court of the Province set up under Article 154P of the Constitution.

    This innovation of the establishment of a Court of Appeal to which all appeals then pending before the Supreme Court stood removed, brought about a delay in the process of disposing of appeals. The fact that there was another appeal to the Supreme Court made it incumbent on the Court of Appeal to deliver considered judgements on all matters that were decided upon slowing down the pace of disposal to a point where the Court accumulated a backlog of appeals. Several steps were taken over the years to relieve the burden of the Court of Appeal. Quite apart from the inordinate delay, the exercise of appellate jurisdiction by the Court of Appeal, based only in Colombo has other negative factors, they are (i) litigants from far remote parts of the country have to trek to Colombo for the purpose of their civil appeals and (ii) they have to retain Counsel in Colombo and incur a higher overall costs than at Provincial Level.

    The original criminal and civil jurisdiction was exercised by the following courts:

    (a) High Court of the Republic

    (b) District Court

    (c) Magistrate’s Court and

    (d) Primary Court

    The High Court of the Republic of Sri Lanka

    Article 105 of the Constitution recognized High Court of the Republic as an institution established through the Constitution. However, the Constitution did not spell out the powers and the general jurisdiction of this Court. Providing for this omission, section 4 of the (Chapter 3) Judicature Act, No.2 of 1978 declared that the High Court shall be a court of record and the power and jurisdiction of the High Court was found in section 9 and 13 of the Judicature Act. Article 111 of the Constitution declared that the High Court of the Republic of Sri Lanka would be the highest Court of First Instance. However, the 11th Amendment to the Constitution which was passed by the Parliament on May 6, 1987 stated that the said High Court would no longer be considered as a Court of First Instance. Before the 13th Amendment to the Constitution came into operation, the High Court of the Republic was vested with original criminal jurisdiction.

    All criminal prosecutions in the High Court commenced with the filing of an indictment by the Attorney - General. This system has continued upto date. In addition to the criminal prosecutions initiated by the Attorney General Indictments were also filed by the Director General of Bribery and Corruption in respect of allegations of Bribery and Corruption. The High Court holden at Colombo was also vested with Admiralty Jurisdiction. This authority has been conferred upon such court by the provisions of the Judicature Act No.2 of 1978. This Court was also vested with extradition jurisdiction.

    Apart from the High Court of the Republic, the Magistrates Courts too exercise original criminal jurisdiction. The original civil jurisdiction is exercised by the District Court and the jurisdiction of the District Court is found in sections 19-23 of the Judicature Act of 1978. The Primary Courts, which were established under the Primary Courts Procedure Act No. 44 of 1979 exercised original civil as well as criminal jurisdiction in respect of trivial matters. The procedure that had to be followed in the Primary Court was to be found in the Primary Courts Procedure Act No.44 of 1979. The Primary Courts are now abolished and this jurisdiction is presently exercised by the Magistrate’s Court.

    Gradually responding to the aforesaid backlog of appeals with the Court of Appeal, steps were taken to transfer the appellate jurisdiction of the Court of Appeal to the High Courts. The process commenced with the 11th Amendment to the Constitution certified on May 6, 1987 which amended Article 111(1) of the Constitution by deleting the reference to the High Court as being a Court of original jurisdiction. This paved the way for the High Court to exercise appellate jurisdiction in addition to its original jurisdiction. The newly substituted Article 111(1) of the Constitution which repealed then existing Article 111 (1) reads as follows:

    ‘There shall be a High Court of Sri Lanka, which shall exercise such jurisdiction and powers as Parliament may vest by law or ordain’.

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