In the complex and sophisticated legal system of Sri Lanka, the Supreme Court presides as the highest and final superior court of record with a final appellate decision in all cases and providing court rulings with binding precedence on all other lower courts. The Supreme Court as the main representative of the Judiciary is a very sensational topic these days among the Sri Lankans as well as the media both local and foreign due to its controversial judgements in the recent past.
The judicial power of the people vested in the Supreme Court primarily falls under the Parliament which the latter then exercises through courts. The composition, jurisdiction and powers of the present Supreme Court were established under the Constitution of 1978. The Supreme Court has 11 judges including the Chief Justice appointed by the President. The court has both original and appellate jurisdiction which are specified from Articles 118-136 of the Constitution. It has jurisdiction in constitutional matters, fundamental rights, final appellation, election petitions, breaches of parliamentary privileges, consultative jurisdiction and in other matters as parliament may by vest or ordain.
Highest Authority in Constitutional Matters
In dealing with constitutional matters the Supreme Court has sole and exclusive power to decide whether any Bill or provision is inconsistent with the constitution. It decides whether the Bill requires the approval of the people at a Referendum according to Article 83 or if it complies with paragraphs (1) and (2) of Article 82. Furthermore it has the exclusive jurisdiction to hear and determine issues relating to the interpretation of the constitution.
The court can further exercise its pre-enactment review of legislation regarding Bills presented in Parliament. When this jurisdiction has been so invoked the Parliament cannot proceed any further in relation to the Bill until the Supreme Court gives its decision which it has to give within a period of three weeks. Regarding urgent Bills the Supreme Court exercises a special jurisdiction where it makes a determination within twenty four hours or a period not exceeding three days as the President may dictate of the assembling of the court. If any such Bill is inconsistent with the Constitution it shall not be passed in Parliament unless in a manner determined by the Court.
Guardian of the Bill of Rights and Final Appellate Jurisdiction
The unfrequented powers of deciding cases relating to infringement or imminent infringement of fundamental and language rights stated in chapters three and four of the constitution, by administrative or executive action is vested with the Supreme Court. It could issue orders in the nature of a writ of habeas corpus, certiorari, prohibition, procedendo, mandamus or quo warranto. In granting relief for the aggrieved of such violations the court has a vast discretion and flexibility in providing ‘just and equitable’ compensation. It is also the final court of civil and criminal appellate jurisdiction. It could affirm or reverse the judgements given even by the Court of Appeal, issue directions to any Court of First Instance and order new trials or admit new evidence if the lawsuit demands it.
Other Powers & Jurisdiction
In its consultative jurisdiction the court provides its opinion to issues referred to it by the President and inquires into allegations put forward by the Speaker on a resolution by a Member of Parliament that the President is permanently incapable of functioning. The Supreme Court can determine any legal proceeding related to Presidential elections as well as hear appeals from a judgement of the Court of Appeal in an election petition case. In addition to this the Supreme Court can penalize any person for the breach of the privileges of Parliament. The Chief Justice with previous consent of the President could appoint ad hoc judges when the required quorum of judges is not available in court. In addition to the jurisdiction declared in the Constitution the Supreme Court can be vested with certain powers through statutes or legislation enacted in Parliament.
It is vested with the powers of establishing regulations for the entire judicial system of the country. These rules include those of hearing appeals, granting bail, stay of proceedings, the admission, enrolment, suspension, removal and the etiquette rules of attorneys-at-law, attire of judges and attorneys-at-law and the manner in which the jury is prepared, summoned, empanelled and challenged. Moreover the Supreme Court can punish those who are in contempt of court with imprisonment or fine or both.
From Monarchy-Colony
Like the colorful culture of the country its Supreme Court is backed by a very rich and eventful history. During the period of monarchy in Sri Lanka the King was the supreme adjudicator of the land; this was the case in the seven consecutive kingdoms of Ceylon. The Kandyan Kingdom witnessed the formation of a court called the Maha Naduva or Great Court which was second only to the King. The Portuguese and Dutch eras saw a change in the judicial structure but not so much in the case of a supreme court as the judicial arm in the Portuguese administration was their weakest link and the Raad Van Justitie, the highest court at the time of the Dutch had an appeal to the High Court of Batavia.
From Colony-Dominion: A Historic Evolution
After the British took over the Maritime Provinces of Ceylon, the Proclamation of 1799 declared that a Supreme Court of Criminal Jurisdiction was established to try cases of murder, treason, forgery, perjury, trespass, misdemeanor and oppression. Then the Charter of Justice in 1801 introduced a new framework while eliminating the Dutch courts and establishing a Supreme Court of Judicature with both original and appellate jurisdiction. This court consisted of a Chief Justice and a Puisne Judge. While exercising its civil and criminal jurisdiction this court could also issue mandates such as writs of mandamus, certiorari, procedendo and error to prevent public authorities from abusing their legal powers. It was to be a court of equity and like the Court of Chancery in England had the jurisdiction over minors and persons of unsound mind. Furthermore it had testamentary and matrimonial jurisdiction extended even to the Ceylonese. Although there was no appeal from the judgement of the Supreme Court in criminal cases, there was an appeal to the Privy Council if the subject matter exceeded five hundred pounds in a civil suit.
The Charter introduced in 1810 elevated the position of the Supreme Court considerably, overshadowing the power of the Governor at the head of the Executive, which ultimately led to a power struggle between the Executive and the Judiciary for the next two decades. The court was divided where the Chief Justice presided over the Southern and Western Provinces and the Puisne Judge heard cases in the Northern and Eastern Provinces. In addition to this the court’s jurisdiction was extended with the abolition of the Provincial Courts. This Charter proved short-lived as the Charter of 1811 restored the status quo and united the two divisions of the Supreme Court.
The 1815 Kandyan Convention brought the hill country under British dominion. However the Supreme Court’s claim over the Kandyan Provinces was rejected and its civil jurisdiction was restricted to Colombo and the Europeans in the Maritime Provinces while its testamentary and equitable powers in the Colombo district were transferred to the Provincial Court through Regulation No.5 of 1826.
The Charter of Justice of 1833 established a Supreme Court with a Chief Justice and two Puisne judges with its civil and criminal jurisdiction extending to the entire island. It was provided with an original and appellate jurisdiction acting as the exclusive court of appeal for the District Court judgements and empowered to issue writs of habeas corpus as well and to admit persons as Advocates or Proctors of the Supreme Court. However the appeal to the Privy Council was retained in civil cases. It could examine contradictory decisions of the district courts and submit declaratory laws to the Governor.
In 1889 the Courts Ordinance introduced minor changes to the Supreme Court where it increased the Puisne Judges to ten, divided the original criminal jurisdiction to five circuits and empowered it to inspect the records of any court, transfer lawsuits when it deemed necessary, transfer prisoners, punish persons for contempt of court and frame rules for the procedures followed in the court system. Then the Ordinance No.2 of 1891 declared the Supreme Court to be a Colonial Court of Admiralty with a jurisdiction in admiralty similar to that of the High Court in England; Orders in Council from 1920 onwards vested the Supreme Court with power to try petitions against the election of persons to the Parliament and then in 1936 to dissolve marriages of persons who were domiciled in England. An Ordinance in 1938 established a Court of Criminal Appeal to hear appeals in criminal cases determined by the Supreme Court.
The Establishment of the Present Supreme Court
Independence from the British in 1948 failed to establish an entirely new framework for the Supreme Court since the Independence Constitution only included the appointment, transfer and dismissal of the judges. Then the Republican Constitution of 1972 removed the judicial review of legislation which the Supreme Court obtained from the Independence Constitution. While a Fundamental Rights chapter was enshrined in this constitution the enforcement of its jurisdiction was not given to the court. The Administration of Justice Law No.44 of 1973 repealed most of the previous legislation regarding the judiciary including the Courts Ordinance and Courts of Admiralty Ordinance. It removed the original criminal jurisdiction from the Supreme Court and curtailed the issuing of mandates in the nature of writs against a Criminal Justice Commission. The appellate authority which the Privy Council had in the past was abolished as the Supreme Court became the last resort in both civil and criminal cases. Then the Second Republican Constitution and the Judicature Act of 1978 solidified the framework of the Supreme Court which functions even today.
Judicial Review of Enacted Legislation VITAL
As the apex court of the Sri Lankan Judiciary there are certain areas where the jurisdiction of the Supreme Court should be extended while in some it should be circumscribed. In constitutional matters the Supreme Court should be able to review the legislation after it has been passed by Parliament as the lack of judicial review of enacted legislation is a fundamental flaw in any democratic constitution. The time period defined for the inspection of an urgent Bill should be determined by the Constitutional Council on the recommendation of the President as it should not be the exclusive decision of the latter.
Expansion of Fundamental Rights Jurisdiction
Although it is a positive characteristic in the Constitution for the Supreme Court to have original jurisdiction concerning violation of fundamental and language rights by Executive and Administrative actions it would have been better if a Court of First Instance initially tried these cases with an appeal to the Supreme Court, like the human rights stated in the ICCPR Act of 2007 where the High Court has been given certain powers over human rights . Devolving such vast jurisdiction might prove to be less tiresome as well as cost effective since the Supreme Court is somewhat inaccessible.
On the other hand, the head of the judiciary is vested with this function is to provide a prompter procedure of justice to the aggrieved. And therefore its jurisdiction should extend to the violations of such rights by the private sector as well as individuals. Otherwise such aggrieved persons would have to endure the cumbersome hierarchy from the Labour Tribunals to the Supreme Court for justice, while the victims of right violations by executive and administrative acts are at an advantage since the remedy given to them is quicker. Even Mark Fernando J. stated in Saman v. Leeladasa [1989] 1 Sri LR 1 that the Sri Lankan constitution guarantees remedies for violations of fundamental rights by individuals. This kind of jurisdiction of the Supreme Court should not be extended by mere judicial precedence but by statutes or an amendment to the constitution.
Demarcation of the Sub-Judice Rule and Locus Standi
The authority which the Court exercises in an issue of contempt of court should be clearly defined and demarcated, since according to the sub-judice rule the courts can restrict commentaries on a case heard before a judge or jury but, only when there is a substantial likelihood of prejudice. However in Sri Lanka the final portion is forgotten as there can be no criticism or commentary on an ongoing case. Moreover due to the relaxation of the rules of locus standi the Supreme Court has enabled the proceeding of so many fundamental rights cases. However it should be taken into consideration that the State is ultimately liable to such compensation. Therefore it is in fact positive for the court to take these cases but there should be a limit and this must be defined.
Conclusion
The main reason for the sudden fame and glory of the Supreme Court is due to the apparent landmark judgements which it has delivered. From Golf Courses to Petrol Prices the Supreme Court of Sri Lanka has been very dynamic in its decisions. The court now intervenes in issues that concern more or less the executive and the legislature organs of the government. The independence of the judiciary is evident and concrete as it weighs a heavy check; nevertheless not all of its orders are followed by the Executive.
The Supreme Court has never been so active before particularly regarding Executive actions. However with great power comes even greater responsibility. The framework in place for the independence of the judiciary fails to overshadow its shortcomings, since most of its judgements are considered controversial. For the most part judicial activism is at work here, and in a country with one of the most powerful executives and corrupt governments such a regulator is indeed invaluable. All the same, a country torn asunder by war does not need another one between the organs of its own government; thus the Supreme Court should confine itself to its specified jurisdiction as the country does not need two oppositions but a ‘just and equitable’ judiciary.
