Jurisdiction of Criminal Law in Courts and Procedures

Explain the jurisdiction of the criminal courts and criminal procedures in the context of criminal proceedings in Sri Lanka (P4.1, M2.3) In reference to the given question, it is vital to analyze in profundity with respect to the criminal procedures in Sri Lanka as well as the jurisdiction of the criminal courts. In order to this, will be centering on the development of criminal law in Sri Lanka and the main sources of criminal law by setting up the critical cases as well as the important criminal courts will be examined.

Sri Lanka has been known to have the numerous frameworks of law even before the entry of Portuguese in 1505, to be specific: Roman Dutch law, English law, Tesawalamai law, Kandyan Law and Muslim Law. In spite of the fact that these diverse frameworks of law may influence the advancement of Sri Lanka, a person who is in connection to distinctive exchange or lawful relations will be represented by distinctive systems of law. It can be said that the common law in Sri Lanka is administered by Roman Dutch Law though the rest is by English law. when considering the improvement of criminal Law in Sri Lanka, before long after when British captured the island in 1796. At the period where most of the areas were surrendered to the British colony the Roman Dutch Law and the Sinhala Law was still operative in Ceylon. Through the contract of Malwanei the Britain’s affirmed that they won’t alter the existing Roman Law framework in Sri Lanka. Through the 1852 Law No.5 the RDL was appropriate to the whole country, the reason behind this action was that the Sinhala law punishments were cruel and inhuman. Due to the lack of information and language difficulties of Roman Dutch law, the English Judges presented the criminal law concepts through case laws and lawful procedures. It can be said that the British introduced the most fruitful source, the Penal code of Act No.2 of 1883 to Sri Lanka. Furthermore, S.3 of the penal code states that ‘the application of RDL with regard to criminal Law had been abolished’. Since then onwards there had been a question whether the new enactment abolished the unwritten principles of English criminal law along with the RDL, from the case of (Kachchery Mudaliyar v Mohammed) the full bench of the supreme court decided that penal code had abolished RDL and also English criminal law up to a certain extent. Moreover, it’s clear that the entire criminal law is a codified (written) assent unlike the United Kingdom.

Criminal Law and Procedure in Sri Lanka is governed by the Penal Code and the Criminal Procedure Code. The penal code is regarded as the oldest source of substantive law the penal code contains all the categories of offences, punishments and the exceptions. The broad categories of offences may include: offences against the state, offences against public tranquility, offences against religion, offences against property, offences against human body, offences relating to coins and government stamps and sexual & martial offences. The punishments which are imposed under the S.52 of the penal code includes: death sentence, fines, imprisonment (rigorous or simple), whipping and forfeiture of property. The death sentence was lastly carried out in 1978. But there have been numerous arguments on imposing the death sentence again which was recently summarized in the case of (Makandure Madush), Where the excellency Sirisena added, ‘ Death Penalty should be included as a punishment for offenses relating to abuse of public assets and state funds’. The general exceptions that are imposed under the Penal code contain: intoxication (S.78), necessity, insanity (S.77), duress (S.87) and private defence (S.90). there are other special legislations made for certain significant crimes that include: the offensive weapons Act, the poisons, opium and dangerous drug Ordinance, the firearm Ordinance, the prevention of terrorism Act, the explosive Ordinance and the offences against air craft Act.

Further, any law can be dived into 2 main categories, namely: Substantive Law and Procedural Law. But under the criminal law the Substantive law defines the offences and the punishments for those offences. And the Procedural law are the actual procedures at work to investigate and prosecute criminal behavior, in other words, the courts procedure and the function comes under the category of procedural law the case of (Ekanayake v. Attorney-General) made a huge impact under the substantive right of the Article. 13(6) of the Constitution of Sri Lanka which stated that the law cannot be enacted with ‘retrospective effect’, however there was an exception under the Article.13 of the Constitution which states that if an offence is committed against humanity then the law can be enacted with the retrospective effect to convict him. Also, it is important to know that the procedural law should always make laws with retrospective effect. The criminal law in Sri Lanka is enacted using the principles of English law therefore it is said that the penal code is influenced by the Roman Catholic theology. To prove a person guilty of an offence he/she must have committed a prohibited act with the blameworthy guilty mind, the essential elements in a criminal liability comprises of Actus reus (prohibited conduct, external element) and mens rea (guilty mind, internal element). Both the elements should coincide to prove a conviction, although there is an exceptions under the S.72 of the penal code (Strick liability offences) which were created as welfare legislations which states that ‘if a certain item is dangerous to the human consumption and if selling such product is an offence under the law, then it should be considered as if the person had the mens rea by the time he decided to sell.’

When an offence is committed the police/ investigation officers investigates the crime scene and gather evidence and later the documentation will be done. and further it is the state that files the case, and the party who represents the government is known as the prosecutor, the reason behind this theology is that he is considered to have committed an offence against the society. And further the private council represents the Defendant. In the case of criminal matters the prosecution must do the proving (A had intercourse with B without their consent) and disproving (A was not acting in self defence). Consonant with the principle that a person is ‘innocent until proven guilty’. The prosecution must prove each and every element of the offence ‘beyond reasonable doubt’ as for criminal procedure, the primary law of this kind was the Criminal procedure code of 1882, which was supplanted by the Ordinance of 1898. in 1974, the administration of justice law was presented but it only operated for 4 years, the present law is the Code of Criminal procedure Act which was sanctioned in 1978 which gives the premise of judiciary administration. As for the hierarchy of Courts, the courts system is governed by the code of Criminal procedure Act and the Judicature Act. The 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 work out appellate and review jurisdiction in a few things. The Court of Appeal and the Supreme Court are the Appellate Courts. The Primary courts are the lowest courts of first instance, it has constrained jurisdiction to criminal and civil matters.

The Magistrates court exercises the original jurisdiction in criminal cases. The in-charge of this court is known as the Magistrate. The Magistrate’s courts also conduct non-summary proceedings before indictment to the high court. They can impose a sentence of 18 months imprisonment and a fine not exceeding 1,500/- rupees. Dengue cases, accidental deaths are also heard at the Magistrate’s court. The Provincial High court was established under the 13th amendment of the Constitution of Sri Lanka. Some of the grave offences (attempted murder, murder, rape etc.) are tried at the High court including offences committed aboard aircraft and within the territorial air space. The High court has power to impose death sentence, fines and imprisonment. The High court trial is heard by a High court judge alone or with the jury. Where the in-charge of this court will be respected as ‘your- honor’. The Court of Appeal was established under the chapter XV of the Constitution of Sri Lanka which states not less than 6 and not more than 11 judges. A person who is aggrieved by the judgement from the High court can appeal at the Court of Appeal which consists not less than 2 judges. It also has the appellate jurisdiction to correct all the errors of judgements from the courts of first instance. It has the power to affirm, reverse, correct or modify any order, judgment or decree or sentence given by above institutions. According to Article.140 it also has power to issue writ orders.

The Supreme court is the final appellate and the highest court, which consists a Chief Justice and judges not less than 6 and not more than 10. The male Chief Justice is called as the Lordship whereas the female Chief Justice is called as the ladyship. The SC also exercises the alleged violations of fundamental rights and freedom guaranteed under the fundamental rights. It also has jurisdiction in relation to election petition. It is important to know that the justice of Supreme court and the judges of the appeal and High courts are appointed by the President. Whereas the Judges of the lower courts are appointed by the judicial service commission.In light of all the statements given above, it gives a clear comprehension on the criminal proceedings and the jurisdiction of criminal courts in criminal procedure. The law is meant to be the set of rules and regulations made in order to govern a country. The fundamental ethical principal represents the idea that the justice in punishment requires punishment to be deserved. In order to forbid and prevent the crimes committed against the society the enforcement of criminal law is vital. The judiciary in Sri Lanka has interpreted the principles of statutory provisions applicable to bail in light of fundamental rights guaranteed under the constitution of Sri Lanka. Hence the fundamental rights jurisdiction acts as a check on refusal to grant bail to suspects and accused. Summarize the law relating to bail in Sri Lanka with reference to statutory provisions and case law (P4.3, M1.1, D3.2) The concept of bail was firstly developed in England during the middle ages. And later was developed by both legislature and the courts in Sri Lanka. The law obtaining bail was enacted in the Code of criminal procedure Act No.15 of 1979 was amended as the Bail Act No 30 of 1997. The special provisions were made after the enactment of the Bail Act No.30 of 1997. The term bail has no legal definition in Sri Lanka although a person should seek the dictionary to get a fair meaning of the word ‘bail’. The Black’s law dictionary gives a clear meaning as "procuring release of one charged with an offence by ensuring his future attendance in court and compelling him to remain within the jurisdiction of that court". Whereas the Cambridge dictionary refers to it as "an amount of money that a person who has been accused of a crime pays to a law court so that they can be released until their trial. The payment is a way of making certain that the person will return to court for trial". In the ancient terms the bail is obtained through oaths but in the modern practice the bail is referred to as releasing a person in a temporary basis by requiring sum of money.

The case of (Kanapathy v Jayasinghe) gave a clear judicial definition on bail, stating as "the discharge or setting at freedom of an individual arrested or detained either on his possess recognizance or upon others getting to be sureties for his appearance in court in a future day". Instead of going into in profundity examination of definitions, this paper endeavors to briefly talk about on the arrangement of giving safeguard and its down to earth suggestion in Sri Lankan setting and to invite a person to evaluate towards a way forward". The accused presence at a criminal trial is mandatory while granting the bail, the Latin term of 'Audi Alteram Partem', has been interpreted in English, stating that, 'no one should be condemned unheard’ in other words, ‘both parties must be heard for the administration of natural justice’. On the off chance that if the party denies to present at court it would lead to ‘contempt of court’. The concept of bail mainly focuses on the liberty and freedom of an innocent person. The Constitution of Sri Lanka pinpoints such aspects in light of Article 13(2) states that "every person held in custody, detained or otherwise deprived of personal liberty shall be brought before the Judge of the nearest competent court according to procedure established by law, and shall not be further held in custody detained or deprived of personal liberty except upon and in terms of the order of such judge made in accordance with procedure established by law". Also, the Article 13(5) of our Constitution states that "every person shall be presumed innocent until he is proved guilty provided that the burden of proving particular facts may, by law, be placed on an accused person".

Further the bail may be granted to a person through written conditions determined by the court or the police officer. As per to the section 2 of the Bail Act, No.30 of 1977 stipulates that granting bail shall be regarded as the rule of right to bail and the refusal of bail would amount to exception. In the case of (Ediriweera v A-G) the judges summarized the principle of right to bail as the rule and the refusal as the exception. It is important to consider that the bail Act does not particularly state that right to bail is an absolute right. The matter of bail focuses on the importance of freedom hence why the impact of Human rights was implemented through the general assembly resolution. According to the Universal Declaration of Human Rights, General Assembly Resolution 217 A(III) of 10th December 1948 Article 13 states that, ‘everyone has the right to freedom of movement and residence within the borders of each state. Everyone has the right to leave any country, including his own and to return to his country’ as per to the Human Rights a man is considered to have unalienable rights, freedom and the interest of joy is the most vital and important right.[footnoteRef:32] These rights are clearly stated under the US declaration for independence, congress 4th July 1776. In the case of (Hill v Spain) and (W.B.E. v The Netherlands) the Human rights committee held that pre-trial detainment should be the exception and that bail should be allowed except where the charged would slip away, destroy or interfere with evidence, impact witnesses or avoid commission of further offenses.

Arresting an individual should be done cautiously in accordance with Section 23 of the Code of criminal procedure Act, later will be implemented through warrants or without a warrant as per to the Section 32 of the Code. After producing the accused at the courts, the courts decide whether to remand or to grant bail. Moreover, the bail Act consists of 2 categories of offences: 1) Bailable and 2) Non Bailable offence. Offences imposed under the penal code have been categorized into bailable and non bailable in the code of criminal procedure code of Sri Lanka. The bail Act section.4 states that ‘a person suspected or accused of being concerned in committing or having committed bailable offence shall subject to the provisions hereinafter provided, he entitled to release on bail’.[footnoteRef:34] In the case of (Pathirana v OIC Nittambuwa) COA held that magistrate has no jurisdiction to remand a person for bailable offences. It is clear that a person has the right to bail if it is only vested with bailable offences and not for the non bailable offences.

However, there is a limitation to the officer in charge of the police station under the Section.6 of the bail Act states that where an offence is a bailable offence, the officer shall not be required to forward the suspect under its custody before the magistrate, but the officer shall produce the accused at the magistrate not later than twenty- four hours being taken into custody, release him on a written undertaking order to appear the accused before the magistrate on a given date’. The limitations to the bail Act is imposed under the S.3, S.13 and S.14 states the reasons for cancellation of subsisting order on bail. S.3 of the Bail Act states that an accused inspected for having committed under the prevention of terrorism cannot apply for bail. The S.13 states where an accused is suspected for committing an offence punishable with death or life imprisonment cannot be released on bail except by a judge of the High court, as well as the S.14 stipulates the reasons in which a court may refuse bail such a person would i) Not appear to stand his inquiry or trial ii) Interfere with the witnesses or the evidence against him or otherwise obstruct the course of justice; or iii) Commit an offence while on bail; b) that the particular gravity of, and public reaction to, the alleged offence may give rise to public disquiet similarly this applies to dangerous drugs cases as well (heroine). The accused will be produced at the courts after taking him into the custody not later than twenty-four hours. The bail Act provides that the longest period where an accused can be kept under the custody can be twelve months which will be sentenced by the courts. the Hon.Attorney General decides on the exceeding period of the custody by providing sufficient reasons satisfying the courts. through the case of (W.R. Wickramasinghe Vs. Attorney General) the COA held that the longest period an accused can be kept remanded can be two years under the S.17 of the Bail Act. [35: S.6(1) of Bail Act, limitation to the OIC of police station.

Further there are 3 types of bail in practice in Sri Lanka, namely: General bail, Anticipatory bail and Bail pending appeal. The general bail is granted to a person who is already under the custody either police or judicial. The concept of anticipatory bail was derived from India and is imposed in the section 21 of the bail Act. When a person who is already cautious believes that he will be arrested in future for committing an offence or being concerned in committing a non-bailable offence may apply for anticipatory bail to the magistrate in the area of having jurisdiction. The main aspect of the anticipatory bail is summarized in the case of (Gurubakash Sing Sibbia V State of Punjab) which states to safeguard the innocent person of being arrested by misuse of legal provisions on false, malicious and baseless complaints. The subject of conditions where a person in released on anticipatory bail are given in the section.24 of the bail Act. Since the concept of anticipatory bail was pasted from India, the conditions are much similar except the fact that in Sri Lanka the jurisdiction is vested in the Magistrate court whereas in India in the High court. The following, bail pending appeal is referred to as releasing a convicted person on a bail pending appeal. Section 19(2) states ‘when an appeal has been preferred from a conviction by a magistrate’s court the court from which the appeal is preferred may having taken into consideration the gravity of the offence and the antecedents of the accused, refuse to release the appellant on bail. There have been numerous arguments on whether a person is entitled to get bail in a bail pending appeal, however in the case of (A-G v Chandrasena) it was decided that a person who is convicted on charge of murder is not entitled to bail and shall be kept in remand until the final determination of his appeal. Although there are certain grounds of bail one must be aware that the limitation imposed under S.3, S.13 & S.14 will be considered by the courts whilst granting a bail.

In light of all the statements given above, it gives a clear idea as to how far the development of bail has been established in Sri Lanka. The fundamental idea of bail is to grant unalienable rights to a man hence why the impact of the constitution of Sri Lanka has imposed such aspects as well as per to the S.13(2) and S.13(5) mentioned above. Although the law requires that one cannot be remanded for more than 1 years of time the reason reports establish that there were prisoners who was under the custody for more than 5 years, so indeed it is clear that the bail itself is being malpractice. Subsequently, one must see through the framework comprehensively to a redress viewpoint with a view of creating an improved arrangement on bail and related things to form the framework useful to all the stake holders who are mindful for the organization of justice in Sri Lanka.