Supreme Court of Sri Lanka

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.                                             

Imperium

Imperium: The Peak of Roman Ambition

Imperium, in the Roman state was the supreme administrative authority vested in certain individuals, to command in war and originally to interpret and execute the law including the power to impose the death penalty. Imperium, as a source of law existed from the very beginning, during the monarchy vested in the king (rex) who was the head of government, commander of the army, head of state, chief priest, judge and legislator.  Imperium in a broad sense is the supreme kingly “power vested by the state in a person to do what he considers being in the best interests of the state".  Imperium derived from the Latin verb, imperare (to command), served as a source of law through those whom it was invested.

In Rome after the establishment of the republic, two magistracies (consul & praetor) possessed the imperium but anyone within the scope of his magistracy could be vetoed by a magistrate having imperium maius, a higher degree of imperium or through the equal power of his colleague (intercessio). The expansion of Rome led to the creation of Proconsuls and Propraetors who were vested with imperium but restricted to their provinces. After the conversion into an Empire the Emperor held immense power including the imperium which he used to diminish the power of the other magistracies and councils. The person with imperium carried an ivory baton surmounted by an eagle as his personal symbol of office and was escorted by lictors (attendants) bearing the fasces (traditional symbol of imperium).

The Kingly Power

With his imperium, the Roman king as chief executive had the power to enforce all laws, as the chief legislator formulated and proposed legislative proposals as deemed necessary and as judge adjudicated all civil and criminal cases. The imperium of the king was held for life and protected him from ever being brought to trial for his actions. It was granted to him by the Comitia Curiata by means of lex de imperio. Therefore the King weilded power over the Senate, an advisory council composed of Patrician elders selected by the king.  However his legislative authority even with imperium was curtailed in the instance of sanctioning law since the senate’s sanction was imperative to pass a new law. 

His imperium together with regnum (regal power) gave him the authority to dismiss the advice of the senate although he was bound to consult the body. His power as elected by the people preceded the power of the Comitia Curiata, which was an exclusive council of patricians composed of the curiae into which the tribes of ramnes, tities and luceres were subdivided. The king in his capacity to make laws, issued Royal Statutes (leges regiae) the only source of law at the time however were subject to the consent of the Comitia.

Retention of Imperium Despite the Fall of Monarchy

After the dismissal of Tarquinius Superbus, the seventh king, in 510 B.C. a republic was setup with two magistrates called Consuls (consules) replacing the king but endowed with the power of imperium. This however did not include the power to head religious affairs which was now given to pontifex maximus. According to scholar Thomas “The extent of the erstwhile kingly power was not limited but it appears to have been the belief of the founders of the republic that to have two officers of coequal power, each able to place a veto on the proposal conduct of the other would effectively prevent a recrudescence of despotism”.

In order to reduce the burden on the consul, another magistracy was created of that of the Praetor (praetor urbanus) who was also given the power of imperium, but his main function was civil jurisdiction. The expansion of Rome formed another praetor (praetor peregrinus) to handle issues regarding foreigners. Other than these the extraordinary magistracy of Dictator (magister populi) and his deputy (magister equitum) possessed the imperium. Appointed by one of the consuls for a period of 6 months during times of emergency the dictator had the summum imperium which confirmed by the comitia, gave him absolute power over his decisions without an appeal as well as a veto thus affecting the laws passed by the assembly (leges) as well as the advise of the senate (senatusconsulta).   

The consul had unlimited power in legal, administrative and military affairs and though the administration of justice (iurisdictio) was transferred to the praetor, he retained his right to issue decrees or edicts (ius edicendi) and his right to compliance therewith. The consul with higher imperium could veto the actions of the praetor and therefore impact the edicts of this inferior official (minor collega) as well. Although he consulted the senate in almost all proposals before he placed them at the assembly, the advice given by the elders was not legally binding on the magistrates with imperium. The consul had the power to convene assemblies and put forward proposals which were most of the time sanctioned by the assembly according to his will. The extent of the force of imperium can be seen by the fact that it was only by legislation that a citizen had the right of appeal to the assembly (provocatio ad populum) from a magisterial order for his execution.  

Praetor’s Imperium: Revolution of Roman Civil Law

As a source of law the praetor’s imperium had a greater impact on the other sources since he was entrusted with the administration of justice. His edicts known as ius praetorium formed the ius honorarium, the law of magistrates derived from honor or office. Through this they administered the ius civile and ius gentium, the edicts taking the form of edictum perpetuum, issued at the beginning of office and edictum repentium, issued during the year. Their edicts proved to be an ideal framework for law reform since they included new remedies and defences as well as for the overriding power to act in the interests of the state even if it was in contradiction to the civil law.

In the late republic praetors became the leading legal reformers with a more radical approach and effectuating remedies for fraud, duress, protection of propriety, succession to property on death and recognition of informal agreements. In administering justice if the praetor stated in edict judicium dabo or agere permittam he made praetorian law not civil law and if he stated potestatem agendi non fasciom he did not repeal civil law but determined its effects.

Praetor Urbanus was vested with legis actiones (the actions-at-law), a system where he decided whether to have a trial and the appropriate form, but his imperium was restricted to follow the ius civile. The foreigners did not qualify for the legis actiones so praetor peregrinus lent the sanction of his magisterial imperium to a court of recuperatores in cases regarding foreigners by stating the issue in the decree of appointment and then ordered the judges by virtue of his imperium to find for or against the defendant. Therefore the task of formulating the issue was taken care of by the praetor himself in the decree, which is called the formula.

A Power that knows NO limits???

The imperium had its limits since the Tribune (plebis tribunus), representative of the plebians, although lacking the imperium could veto all magistrates (ius intercedendi) except for the Dictator and Censor and was immune from prosecution and injury (sacrosanctitas). The concilium plebis tributum the assembly of the Plebians was conevened by the tribunes and the resolutions passed, plebscita, were of considerable significance since they gained legal value after lex hortensia in 287 B.C. and binding on the imperium holders. During times of crisis the senate passed the senatusconsultum ultimatum which directed all magistrates to see that the state is not harmed. Imperium holders and Censors in charge of state discipline had power to inflict chastisement and the latter with their ‘nota censoria’ could remove magistrates and senators for improper conduct.

Principate: On the Road to Supremacy

The dysfunctional reign of Julius Caesar, with Marc Anthony offering him the crown resulted in a murder leading to a state of anarchy, finally ending in a war where Octavian emerged victorious. The senate bestowed the jubilant Octavian with the honour of princeps (first citizen) and the title augustus.

His imperium existed by virtue of imperium maius and imperium proconsulare which provided him authority over the government including the power to preside over the senate and popular assemblies and as imperator, command of the Roman army. Furnished with the potestas tribunicia (tribunician powers) his office and person became sacrosanct. Moreover he was endowed with rights to declare war, ratify treaties and negotiate with foreign leaders.

Although the republican institutions remained, the emperor was pre-eminent and their roles gradually waned. A dyarchy by title the senate and the emperor shared power, with the latter possessing more power. If the senate passed a law it was Augustus who had framed it and without his approval nothing could be done and even in the provinces his imperium prevailed over the governors. The importance of plebiscita and leges declined since the popular assemblies practically became mouthpieces of the princeps but the senatusconsulta now became legally binding under the will of the emperor, as he was its head.

His power to create law under the imperium became apparent since his approval was essential for laws and resolutions passed by the senate and the popular assemblies but later he created law on his own. But he was not bound by law ‘princeps legibus solutus est’. According to Gaius this was because the people had transferred their power to the emperor by virtue of the law ‘lex regia’.

The prominence of the consul in creating law had diminished, the praetors continued to be elected and issue edicts in the early years of the Empire, but their significance declined as constitutiones (imperial decrees) took over. New posts were created by the emperor which superseded the Republican magistracies and among these were the various praefecti (prefects) like the praefectus praetorio (second in command after princeps); but they were mere mouthpieces of the emperor. The main source of law during the Empire was the work of jurists through their opinions, responsa. The emperor however influenced this by granting the best known jurists the right to give opinions (ius respondendi) by the authority of the princeps.

“A decision given by the Emperor has the force of a statute” says Ulpian, a jurist. Once the jurists ceased to influence the law, the imperial decrees became the exclusive legal reform instruments. From the decrees, edicta were the edicts of the Emperor issued on an unlimited range of matters, decreta were decisions by the Emperor on legal disputes with the law at his discretion in its interpretatio, mandata were instructions given by the Emperor to subordinate officers, particularly provincial governors mainly dealing with criminal and administrative law and rescripta were written responses from the princeps to questions or petitions by public bodies, officials or citizens. Thus the Emperor with his imperium made a huge impact on the other sources of law as well as institutions.

Dyarchy disposed: Imperium in the Dominate

Dismissing the republican façade, Emperor Diocletian acquired the title of dominus (lord of the Roman Empire) which led to nothing more than an absolute monarchy. An autocracy was established where the senate although remained as an important constitutional body was limited to its ancient traditions. The leges and plebiscita had become completely ineffective. The emperor possessed the exclusive power of imperium maius and virtually absolute legislative power as the jurists receded and the imperial decrees became the most significant source of law.

While dominus retained all the powers of the princeps and the latter’s impact on the sources of law, even the smallest obstacle vanished which might question his power. Adding to all these the decreta were collected and they became binding precedents, and the magistracies with imperium such as consuls and praetors gradually diminished until the autocracy was complete.

Imperium: Ambition Achieved

Therefore the Imperium as a source of law inflitrated itself into almost every sphere of Roman law, life and government. From a kingly power it divided during the Republic only to gain momentum in the Principate and finally to reach its climax during the Dominate, achieving the ambition of a supreme authority vested in a single person with the ability of having a monumental impact on Roman law.  

Most Poisonous Animals in the World

Venom more commonly known as poison is a method used by various creatures to defend themselves as well as to hunt prey instead of using razor sharp claws and physical strength. These creatures are known as venomous creatures and they bite, sting as well as shoot toxins towards victims. Remember that in the reptilian and amphibian world the colours red and yellow depict danger and that you should be extremely careful with these animals. The following are the top eight most poisonous animals in the world. 

1. Poison Dart Frog

The most venomous animal on earth is a black and yellow tiny frog that lives in Central and South America. Its skin contains a highly lethal chemical and two micrograms of this (enough to fit on the head of a pin) can easily kill a human or any large mammal that might come into contact with it. 

2. Inland Taipan

Although this Australian serpent is shy and gentle it is the most poisonous snake on earth and one bite from it which contains enough potent toxin approximately 110 milligrams to kill about 100 people. 

3. Sydney Funnel Web Spider 

The most poisonous spider in the world lives in the Australian Outback. Protecting its burrow with a strong web should not be penetrated as its fangs can deliver a powerful neurotoxin causing extreme pain and killing average mammals within 15 minutes. Although some mammals are not affected by the spider humans have a very powerful effect. 

4. Stonefish 

Inhabiting the Pacific Ocean waters along the Australian coast this fish looks like a stone or a piece of coral. Since it camouflages itself brilliantly it stings various fish and threats such as humans with its 13 stings. This poison also causes pain but it is short lived due to the shock and death that will follow. 

5. Death Stalker Scorpion 

Of course the king of scorpions has a sting that causes severe pain, fever, coma followed by paralysis and finally death. Living in North Africa and Middle East it does not have a strong stinger but can inflict enough venom.

6. Blue Ringed Octopus

The painless bite inflicted by this menace start working when the neurotoxins in its saliva take effect with numbness, shortness of breathing and then death. 

7. Marbled Cone Snail

Though very slow it thrives on reefs throughout the world shooting venom into victims through a sting type part called the proboscis. The poison paralyses the victim immediately followed by numbness, lung failure and ultimately death. 

8. Box Jellyfish 

Prevalent in the ocean throughout Asia and Australia the stingers and tentacles are extremely powerful and also lethal. Causing excruciating pain for weeks the poison has the capability to stop the heart or paralyze lungs and moreover will inflict skin decay.

Sri Lankan Venom

Although this small island does not contribute to the world top eight it should be noted that this region is infamous for snake bites. Other than for centipedes and scorpions Sri Lanka is the territory of the Sea Krait the most poisonous in the country followed by the Common Krait, Spectacled Cobra, Pit Viper and the Spotted Viper. 

Se Krait