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Sri Lanka is an island nation located in South Asia with a total population of 21.4 million people (2019 estimate). Its largest city and capital is Colombo.
The country maintains a unitary semi-presidential form of government. 
Sri Lankan society is predominately Sinhalese, with significant Tamil and Muslim minorities. Sinhala and Tamil are both official languages, however, the diversity of the population is not reflected in the current justice system with the majority of judicial staff Sinhalese. Tamil speaking litigants often have difficulties navigating the justice system due to a lack of interpreters and court officials who speak Tamil. In addition, women in the legal profession are under-represented in higher-appointed judicial positions.
TYPE OF LEGAL SYSTEM
Sri Lanka is a common law country, which means that, in addition to legislation, the law is interpreted and created through the decisions by judges (stare decisis and ratio decidendi). Due to its complex colonial history, Sri Lanka operates a hybrid legal framework with criminal law drawing on English law and common law based on the Roman-Dutch system. The legal framework is a mixture of legal systems of Kandian law, Roman-Dutch law, English law, Thessavalamai and Muslim law.
The most authoritative decisions are those issued by the Supreme Court, followed in order of hierarchy by the Court of Appeals, High Court, District Courts, Magistrate’s Courts and Primary Courts. The Magistrate’s Court or the High Court is the only court with primary jurisdiction with cases involving criminal law and the respective legal domains of each are stated in the Code of Criminal Procedure.
The principal sources regulating Sri Lankan criminal law are the following: The Sri Lankan Constitution; The Sri Lankan Criminal Procedure Code; The Sri Lankan Evidence Ordinance; The Sri Lankan Penal Code; and The Sri Lankan Judicature Acts.
In the High Court, the State of Sri Lanka through the Department of Attorney-General conducts criminal trials. Generally, murder and trials against the State are heard in the High Court and other criminal offenses are tried in the Magistrate’s Court. The cases in the Magistrate’s Court will be heard and determined by a single magistrate while cases in the High Court will be adjudicated by a judge or jury.
The Court of Appeal has the task of hearing appeals against the judgment of the lower courts. The appeal will be heard usually by a bench of three judges. The Supreme Court is situated in Colombo and is the final appeal of any case and will be heard usually before a bench of three justices.
Duties and Responsibilities of the Defence Lawyer in Sri Lanka
Overview & Sri Lankan National Framework
The Bar Association of Sri Lanka (BASL) was formed in 1974 and is a non-statutory body established under its own Constitution. The Constitution of the BASL determines that in order to practice law in Sri Lanka one must be admitted and enrolled as an Attorney-at-Law of the Supreme Court of Sri Lanka (BASL Constitution, Article 3.1) This is achieved by successfully completing law exams and taking a practical training course at the Sri Lanka Law College, followed by a six month apprenticeship under the supervision of a practicing attorney of at least eight years’ standing. Upon qualification, attorneys are entitled to join the BASL, the representative body of the legal profession. The Attorney-General of Sri Lanka is the chief legal advisor and the primary lawyer in the Supreme Court of Sri Lanka.
Section 40 of the Judicature Act, provides for the Supreme Court to admit and enrol as Attorneys-at-Law, persons of good repute and of competent knowledge and ability, in accordance with Part VII of the Rules of the Supreme Court. Accordingly it is the duty of every legal practitioner to be equipped with relevant knowledge, skills and competency when discharging his/her professional services on reasonable standards.
The Supreme Court may make rules regulating generally the practice and procedure of the court including - the admission, enrolment, suspension, and removal of attorneys-at-law and the rules and conduct and etiquette for such attorneys-at-law (Constitution of Sri Lanka, Article 136(g)).
A strong and independent legal profession is essential for maintaining the rule of law and ensuring the protection of human rights. In order to perform their duties effectively, attorneys must be accorded all the domestic and international law guarantees which allow them to represent the interests of their clients in an independent and effective manner in criminal proceedings, as well as the other fundamental rights and freedoms.
The Basic Principles on the Role of Lawyers (the “UN Basic Principles”) were formulated in 1990 to promote and ensure the proper role of lawyers. In its preamble the UN Basic Principles state that “adequate protection of the human rights and fundamental freedoms to which all persons are entitled…requires that all persons have effective access to legal services provided by an independent legal profession.” The International Bar Association has also adopted certain standards to assist in the task of promoting and ensuring the proper role of lawyers.
As individual rights holders, lawyers are entitled to the myriad rights and protections enshrined in international and regional human rights treaties. These include for example provisions on the right to life, liberty and the security of person, prohibition of torture or other cruel, inhuman or degrading treatment or punishment (other ill-treatment) and equality before the law.
===Specific Duties, Responsibilities and Rights of Defence Lawyers===
The Duty to Maintain Confidentiality of Client Information
No attorney-at-law or notary shall at any time be permitted, unless with his client’s express consent, to disclose any communication made to him in the course and for the purpose of his employment as such attorney-at-law, or notary by or on behalf of his client, or to the state the contents or conditions of any document with which he has become acquainted in the course and for the purpose of his professional employment, or to disclose any advice given by him to his client in the course of and for the purpose of such employment: Provided that nothing in this section shall protect from disclosure – (a) any such communication made in furtherance of any illegal purpose; and (b) any fact observed by any attorney-at-law, or notary in the course of his employment as such, showing that any crime or fraud has been committed since the commencement of his employment – Sri Lankan Evidence Ordinance, Section 126.
No one shall be compelled to disclose to the court any confidential communication which has taken place between him and his legal professional advised, unless he offers himself as a witness, in which case he may be compelled to disclose any such communications as may appear to the court necessary to be known in order to explain any evidence which he has given, but no others – Sri Lankan Evidence Ordinance, Section 129.
Relevant International Standards: • A lawyer shall at all times maintain and be afforded protection of confidentiality regarding the affairs of present or former clients, unless otherwise allowed or required by law and/or applicable rules of professional conduct - International Bar Association, Article 4.1. • Governments shall recognize and respect that all communications and consultations between lawyers and their clients within their professional relationship are confidential - UN Basic Principles on the Role of Lawyers, Article 22.
The Duty to be a Zealous Advocate
It is not enough that lawyers appear in court for the accused. They must be prepared both in the facts and law of the case, and argue vigorously for their clients’ interests.
Relevant International Standards: • Lawyers shall at all times maintain the honour and dignity of their profession as essential agents of the administration of justice - UN Basic Principles on the Role of Lawyers, Article 12. • The duties of lawyers towards their clients shall include: (a) Advising clients as to their legal rights and obligations, and as to the working of the legal system in so far as it is relevant to the legal rights and obligations of the clients; (b) Assisting clients in every appropriate way, and taking legal action to protect their interests; and (c) Assisting clients before courts, tribunals or administrative authorities, where appropriate - UN Basic Principles on the Role of Lawyers, Article 13. • Lawyers, in protecting the rights of their clients and in promoting the cause of justice, shall seek to uphold human rights and fundamental freedoms recognized by national and international law and shall at all times act freely and diligently in accordance with the law and recognized standards and ethics of the legal profession UN Basic Principles on the Role of Lawyers, Article 14. • Lawyers shall always loyally respect the interests of their clients - UN Basic Principles on the Role of Lawyers, Article 15. • Lawyers like other citizens are entitled to freedom of expression, belief, association and assembly. In particular, they shall have the right to take part in public discussion of matters concerning the law, the administration of justice and the promotion and protection of human rights and to join or form local, national or international organizations and attend their meetings, without suffering professional restrictions by reason of their lawful action or their membership in a lawful organization. In exercising these rights, lawyers shall always conduct themselves in accordance with the law and the recognized standards and ethics of the legal profession - UN Basic Principles on the Role of Lawyers, Article 23. • Subject to the established rules, standards and ethics of the profession the lawyer in discharging his or her duties shall at all times act freely, diligently and fearlessly in accordance with the legitimate interest of the client and without any inhibition or pressure from the authorities or the public – International Bar Association, Article 6. [2.3.3] The Duty to Conduct Necessary Investigations
Failure to conduct a defence investigation may violate the client’s right to defence, right to counsel and right to a fair trial. Defence lawyers cannot rely upon others to seek out favorable witnesses, investigate prosecution witnesses to determine bias or inaccuracies, or create necessary evidence such as photos.
Relevant International Standards: • In the determination of any criminal charge against him, everyone shall be entitled to the following minimum guarantees, in full equality ... to have adequate time and facilities for the preparation of his defence and to communicate with counsel of his own choosing. International Covenant on Civil and Political Rights, Article 14(3)(b). • It is the duty of the competent authorities to ensure lawyers access to appropriate information, files and documents in their possession or control in sufficient time to enable lawyers to provide effective legal assistance to their clients. Such access should be provided at the earliest appropriate time UN Basic Principles on the Role of Lawyers, Article 21. • Governments shall ensure that lawyers (a) are able to perform all of their professional functions without intimidation, hindrance, harassment or improper interference; (b) are able to travel and to consult with their clients freely both within their own country and abroad; and (c) shall not suffer, or be threatened with, prosecution or administrative, economic or other sanctions for any action taken in accordance with recognized professional duties, standards and ethics - UN Basic Principles on the Role of Lawyers, Article 16.
The Duty and Right to be Independent
One barrier to practice is an over-identification of the lawyer with the client. While lawyers need to be client-centered and ever mindful of their interests’ lawyers should always remain independent professionals, providing representation consistent with the law and ethical standards.
Relevant International Standards: • Lawyers shall not be identified with their clients or their clients' causes as a result of discharging their functions - UN Basic Principles on the Role of the Lawyer, Article 18. • Lawyers shall enjoy civil and penal immunity for relevant statements made in good faith in written or oral pleadings or in their professional appearances before a court, tribunal or other legal or administrative authority - UN Basic Principles on the Role of Lawyers, Article 20. • A lawyer shall maintain independence and be afforded the protection such independence offers in giving clients unbiased advice and representation. A lawyer shall exercise independent, unbiased professional judgment in advising a client, including as to the likelihood of success of the client’s case - International Bar Association, Article 1. • The independence of lawyers in dealing with persons deprived of their liberty shall be guaranteed so as to ensure that they have free, fair and confidential legal assistance, including the lawyer’s right of access to such persons. Safeguards shall be built to avoid any possible suggestion of collusion, arrangement or dependence between the lawyer who acts for them and the authorities – International Bar Association, Article 12.
The Duty to be Ethical
Relevant International Standards: • Lawyers like other citizens are entitled to freedom of expression, belief, association and assembly. In particular, they shall have the right to take part in public discussion of matters concerning the law, the administration of justice and the promotion and protection of human rights and to join or form local, national or international organizations and attend their meetings, without suffering professional restrictions by reason of their lawful action or their membership in a lawful organization. In exercising these rights, lawyers shall always conduct themselves in accordance with the law and the recognized standards and ethics of the legal profession - UN Basic Principles on the Role of Lawyers, Article 23.
The Duty to Avoid Conflicts of Interest in Representation
Lawyers have a duty in criminal trials to avoid conflicts of interest in representation. A conflict of interest arises when there is a potential for influence on the lawyer-client relationship that may affect the lawyer’s duty of loyalty to the client, duty to render independent judgment to the client or duty to protect the client’s interest.
It is important to note that the level of conflict is different in each case and should be addressed on a case specific basis. The following are examples of conflict of representation: 1. An accused pleads his guilt to his lawyer but wishes to plead not guilty – the lawyer cannot properly address the court knowing that the accused is guilty (i.e. knowingly represent an untruth to the court). 2. An accused disagrees with the lawyers’ theory of the case – the lawyer cannot properly manage the case on a go forward basis when there is a breakdown in the lawyer-client relationship.
The Right to Provide Representation in Court
Relevant International Standards: • No court or administrative authority before whom the right to counsel is recognized shall refuse to recognize the right of a lawyer to appear before it for his or her client unless that lawyer has been disqualified in accordance with national law and practice and in conformity with these principles - UN Basic Principles on the Role of Lawyers, Article 19. • No court or administrative authority shall refuse to recognize the right of a lawyer qualified in that jurisdiction to appear before it for his client – International Bar Association, Article 9. • A lawyer shall have the right to raise an objection for good cause to the participation or continued participation of a judge in a particular case, or to the conduct of a trial or hearing - International Bar Association, Article 10.
The Right to Gain Access to Detained Clients
Relevant International Standards: • All persons are entitled to call upon the assistance of a lawyer of their choice to protect and establish their rights and to defend them in all stages of criminal proceedings - UN Basic Principles on the Role of Lawyers, Article 1. • Governments shall ensure that efficient procedures and responsive mechanisms for effective and equal access to lawyers are provided for all persons within their territory and subject to their jurisdiction, without distinction of any kind, such as discrimination based on race, colour, ethnic origin, sex, language, religion, political or other opinion, national or social origin, property, birth, economic or other status - UN Basic Principles on the Role of Lawyers, Article 2. • Governments shall ensure the provision of sufficient funding and other resources for legal services to the poor and, as necessary, to other disadvantaged persons. Professional associations of lawyers shall cooperate in the organization and provision of services, facilities and other resources - UN Basic Principles on the Role of Lawyers, Article 3. • Governments and professional associations of lawyers shall promote programs to inform the public about their rights and duties under the law and the important role of lawyers in protecting their fundamental freedoms. Special attention should be given to assisting the poor and other disadvantaged persons so as to enable them to assert their rights and where necessary call upon the assistance of lawyers - UN Basic Principles on the Role of Lawyers, Article 4. • Governments shall ensure that all persons are immediately informed by the competent authority of their right to be assisted by a lawyer of their own choice upon arrest or detention or when charged with a criminal offence - UN Basic Principles on the Role of Lawyers, Article 5. • Governments shall further ensure that all persons arrested or detained, with or without criminal charge, shall have prompt access to a lawyer, and in any case not later than forty eight hours from the time of arrest or detention – UN Basic Principles on the Role of Lawyers, Article 7. • All arrested, detained or imprisoned persons shall be provided with adequate opportunities, time and facilities to be visited by and to communicate and consult with a lawyer, without delay, interception or censorship and in full confidentiality. Such consultations may be within sight, but not within the hearing, of law enforcement officials - UN Basic Principles on the Role of Lawyers, Article 8.
The Magistrate’s Courts of Sri Lanka have summary criminal jurisdiction. This is set out in section 9 of the Code of Criminal Procedure:
Subject to and in accordance with the provisions of this Code every Magistrate’s Court shall have—
(a) power and authority and is hereby required to hear, try, determine, and dispose of in a summary way all suits or prosecutions for offences committed wholly or in part within its local jurisdiction, which offences by this Code or any other law in force are made cognizable by a Magistrate’s Court or a District Court;
(i) jurisdiction to inquire into the commission offences - to inquire into all the offences committed or alleged to have of been committed wholly or in part within its local jurisdiction or in relation to which jurisdiction is by this Code given to such court to inquire into, to summon and examine all witnesses touching such offences, and to issue warrants and other processes to apprehend and summon all criminals and offenders and deal with them according to law; and
(ii) to issue search warrants and to require sureties for the peace - to issue warrants to search or to cause to be searched all places wherein any stolen goods or any goods, articles, or things with which or in respect of which any offence has been committed are alleged to be kept or concealed, and to require persons to furnish security for the peace or for their good behaviour according to law; and
(iii) to inquire into cases of sudden or accidental death - to inquire into all cases in which any person shall die in any prison or mental or leprosy hospital or shall come to his death by violence or accident, or when death shall have occurred suddenly, or when the body of any person shall be found dead without its being known how such person came by his death.
The summary criminal jurisdiction of the magistrate’s courts is subject to section 10 of the Code of Criminal Procedure:
Subject to the other provisions of this Code any offence under the Penal Code, whether committed before or after the appointed date, may be tried save as otherwise specially provided for in any law—
(a) by the High Court; or
(b) by a Magistrate’s Court where that offence is shown in the eighth column of the First Schedule to be triable by a Magistrate’s Court.
The High Court is the highest court in each of the states of Sri Lanka and hears both civil and criminal cases.
In terms of section 12 of the Code of Criminal Procedure the High Courts are to try cases only upon indictment:
Subject to the provisions of this Code and of any other written law the High Court shall not take cognizance of any offence unless the accused person has been indicted before it for trial by or at the instance of the Attorney-General.
Section 9 of the Judicature Act specifically confers the following jurisdiction on the Sri Lankan High Courts:
(1) The High Court shall ordinarily have the power and authority and is hereby required to hear, try and determine in the manner provided for by written law all prosecutions on indictment instituted therein against any person in respect of:
(a) any offence wholly or partly committed in Sri Lanka,
(b) any offence committed by any person on or over the territorial waters of Sri Lanka;
(c) any offence committed by any person in the air space of Sri Lanka;
(d) any offence committed by any person on the high seas where such offence is piracy by the law of nations; (e) any offence wherever committed by any person on board or in relation to any ship or any aircraft of whatever category registered in Sri Lanka; or
(f) any offence wherever committed by any person, who is a citizen of Sri Lanka, in any place outside the territory of Sri Lanka or\on board or in relation to any ship or aircraft of whatever category.
(2) The jurisdiction of the High Court shall subject to the provisions of any other law:
(a) in respect of any offence committed wholly or partly in Sri Lanka referred to in paragraph (a) of subsection (1), be ordinarily exercised by the High Court held in a judicial zone within which such offence was wholly or partly committed;
(b) in respect of any offence committed in any place referred to in paragraphs (b) to (f) of subsection (1) shall be exercised by the High Court holden in the judicial zone nominated by the Chief Justice by a direction in writing under his hand - Provided that the Chief Justice may may, if he deems fit, direct by writing under his hand that the High Court holden in any zone nominated by him shall hear and determine any offence referred to in paragraph (a) would ordinarily have been heard and determined by the High Court holden in any other judicial zone.
All trials in the High Court shall be before a Judge of the High Court sitting alone without a jury (Judicature Act, Section 11).
Section 11(2) of the Judicature Act, determines that trials in the High Court shall be by jury before a Judge of the High Court where:
(a) at least one of the charges is an offence referred to in the Second Schedule; and
(b) the accused elects to be tried by a Jury.
The High Court has jurisdiction for triable offences under the Penal Code where the offence is listed in the eighth column of the First Schedule (Criminal Code, Section 10(b)).
Court of Appeal
The Court of Appeal hears all appeals from the High Court and Magistrates Court.
Subject to the provisions of the Sri Lankan Constitution and of any law, the court is vested with the following specific jurisdiction:
• May in the exercise of its jurisdiction, affirm, reverse, correct or modify any order, judgment, decree or sentence (Article 139(1));
• May further receive and admit new evidence additional to, or supplementary of, the evidence already taken in the Court of First Instance (Article 139(2));
• Power to issue writs, other than writs of habeas corpus (Article 140);
• Power to bring up and remove prisoners (Article 142);
• Power to grant injunctions (Article 143);
• May inspect and examine any record of any Court of First Instance (Article 145).
The Supreme Court of Sri Lanka was created in 1972, after the adoption of a new Constitution. The Supreme Court is the highest and final superior court of record and is empowered to exercise its powers, subject to the provisions of the Constitution. The court rulings take precedence over all lower Courts. The Sri Lanka judicial system is complex blend of both common law and civil law. In some cases such as capital punishment, the decision may be passed on to the President of the Republic for clemency petitions.
The jurisdiction of the Supreme Court encompasses the following specific areas:
• Constitutional Matters;
• Fundamental Rights;
• Final Appellate Jurisdiction – both in criminal and civil matters;
• Consultative Jurisdiction;
• Election Petitions (Presidential Election);
• Breach of privileges of the Parliament;
• Other matters which Parliament may by law vest or ordain;
• Admission, Enrolment, Suspension and Removal of Attorneys-At-Law.
Article 132 of the Sri Lankan Constitution determines that:
The several jurisdictions of the Supreme Court is ordinarily exercised in Colombo unless the Chief Justice otherwise directs and, subject to the provisions of the Constitution, is ordinarily exercised at all times by a Bench of at least three Judges; the Chief Justice may, on his own motion or at the request of two or more Judges hearing any matter or on the application of a party, if the question involved is in the opinion of the Chief Justice one of general and public importance, direct that an appeal, proceeding or matter be heard by a Bench comprising five or more Judges.
Appeals from a High Court Trial at Bar shall be heard by a Bench of five or more Judges.
International Treaty Obligations and Persuasive Global Legal Standards
Sri Lanka has signed, ratified, or acceded to a number of seminal international treaties. Practitioners are encouraged to argue for judicial interpretations of Sri Lanka national law consistent with the international obligations in these treaties. These treaties and the corresponding dates of their signature, ratification, or accession by Sri Lanka are set forth below:
A. Convention against Torture and Other Cruel Inhuman or Degrading Treatment or Punishment (Acceded to on 3 January 1994);
B. Optional Protocol to the Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment (Acceded to on 5 December 2017);
C. International Covenant on Civil and Political Rights (Acceded to on 11 June 1980);
D. International Convention for the Protection of All Persons from Enforced Disappearance (Signed 10 December 2015, Ratified on 25 May 2016) with acceptance of individual complaints procedures;
E. Convention on the Elimination of All Forms of Discrimination against Women (Signed on 17 July 1980, Ratified on 5 October 1981) with acceptance of individual complaints procedures;
F. The United Nations Convention on the Rights of the Child (Signed on 26 January 1990, Acceded to on 12 July 1991); and
G. Convention on the Rights of Persons with Disabilities (Signed 30 March 2007, Acceded to on 8 February 2016).
Transitional justice refers to the ways countries emerging from periods of conflict and repression address large-scale or systematic human rights violations so numerous and so serious that the normal justice system will not be able to provide an adequate response. In broad terms, transitional justice aims to provide truth, accountability, reparation and justice.
Sri Lanka was embroiled in a 26-year civil war that ended in May 2009 and the effects of human rights abuses, enforced disappearances and lack of accountability and government transparency continues long after the end of the war. Following the Presidential elections in 2015, the government has made commitments towards transitional justice.
Adoption of International Treaties into Domestic Law
The political scenario in Sri Lanka was greatly impacted by the January 2015 Presidential and Parliamentary elections as the new government became open to democratic development. The Sri Lanka government adopted directives recommended by the Human Rights Commission in June 2016 to protect detainees from abuses, particularly at the time of arrest and ensuing detention, including medical and legal assistance, registration of arrest etc.
In March 2017, the United Nations Human Rights Council reviewed Sri Lanka’s performance under the latest resolution (2015) and extended time for full implementation of the commitments made by Sri Lanka. In May 2017, the cabinet approved a draft Counter Terrorism Act intended to replace the Prevention of Terrorism Act (PTA); however, it has failed to move forward on the new law. In March 2018, the Protection of All Persons from Enforced Disappearance Act (No. 5 of 2018) came into force.
Although Sri Lanka is a party to many international human rights treaties, it has been criticized of not giving full effect to a number of legal responsibilities as set out in these treaties. As indicated however, the Sri Lankan government has indicated its commitment to transitional justice and compliance with its international treaty obligations.
Constitutional and Institutional Reform
The constitutional reform process was initiated in 2016 and several new laws have been adopted. The Right to Information Act, and four important institutions were established: The Office of Missing Persons (OMP), Office for Reparations (OR), Commission for Truth, Justice, Reconciliation and Non-Recurrence (CTJRNR) and Judicial Mechanism (JM). The OMP was established in March 2018, the OR draft bill is pending in Parliament, although progress has come to a standstill with the CTJRNR and JM.
Time limits must be placed on criminal cases to negate delays, abuse of power and to afford victims access to justice in a timely manner. Certain cases are heard only once a year because the courts do not have the capacity to accommodate them twice. Cases are delayed due to judges and prosecutors being absent. Cases are postponed because there is no mechanism in place (such as a provision in the Judicial Services Commission) to hear cases by another judge in the absence of the one who normally heard the case. A reported shortage of courthouses resulted in numerous criminal cases being transferred to Colombo, and often, due to the large number of cases, it is impossible to have them heard in a timely manner.
Criminal accountability for the atrocities committed during the 26-year Civil War is an important element of transitional justice. In 2010, President Rajapaksa set up the Lessons Learnt and Reconciliation Commission (LLRC), which was mandated to investigate events that took place between 2002 and 2009. This commission received international criticism for its limited mandate and its perceived bias.
The Sri Lankan government has failed to establish a special court to investigate and prosecute alleged perpetrators. The government in 2017 asserted that there would be no international participation in prosecutions and that no war heroes (military personnel who fought the LTTE) will be touched.
The role of the Judiciary in a democratic society provides a check and balance on the political branches of government. The current Sri Lankan Constitution fails to contain specific provisions for judicial independence or a separation of powers. According to a UN Report completed in March 2017 by the Special Rapporteur on the independence of judges and lawyers in Sri Lanka, there are credible concerns relating to the independence, impartiality and competence of the judiciary. Judges of the Superior Court can be removed from office by a decision of the President after an impeachment procedure before Parliament. The Executive has the power to arbitrarily remove a judge, which raises concerns on the level of control of the Executive over the Judiciary.
The Constitutional Council conducts the appointment and selection of superior court judges. The Constitutional Council is a ten member constitutional authority tasked with maintaining independent commissions and monitoring affairs. The role of the Constitutional Council is meant to mitigate the President’s influence over the judiciary; however, the majority of the Council’s members are politicians. The procedure for appointment to the Judiciary by the Council continues to be unknown. The International Bar Association in 2009, cited the lack of independent oversight and practice of executive presidential discretion over judicial appointments makes the judiciary vulnerable to executive interference and jeopardizes its independence.
The Judicial Service Commission establishes the process in which judges to the lower judiciary are appointed, transferred, removed and disciplined. Members of the Commission lack political autonomy as the President appoints them and therefore the recruitment of judges is likely influenced by political affiliations. Moreover, the nomination of judges should be based on their competence, not political affiliation. According to the Special Rapporteur Report in 2017, in the past there have been instances when judicial appointments did not follow the established procedure.
The procedure for promoting judges remains relatively vague. There is concern that promotions are used as a tool to ensure political conformity on contentious issues such as human rights abuses and torture. Judges are often offered government or political offices following retirement.
VULNERABLE GROUPS IN THE CRIMINAL JUSTICE SYSTEM
In Sri Lanka, juvenile justice issues are primarily considered in terms of The Children and Young Persons Ordinance (1939) (CYPO). The CYPO defines a “child” as a person under the age of 14 and a “young person” as a person between 14 and 16 years.
According to the Penal Code, a person is considered unable to commit an offence under the age of 8 (Penal Code, Section 75). Similarly anything done by a child above 8 years of age and under 12 years is not an offence, if such child has not attained sufficient maturity to judge the nature and consequences of his conduct on the particular occasion (Penal Code, Section 76).
The CYPO establishes juvenile courts, or children’s courts, as forums of summary hearing with the jurisdiction to hear any charge against a child or young person (CYPO, Section 2). The CYPO also provides for the appointment of children’s magistrates to hear such cases in Sri Lankan magistrate’s and municipal courts (CYPO, Sections 3(1) and 3(2)). The courts have extensive jurisdiction covering all cases of children in need of care and protection and any criminal charges against children other than scheduled offences such as murder, culpable homicide, attempted murder and robbery.
A Municipal Court sitting as a Juvenile Court shall have jurisdiction for offences committed under the Municipal Councils Ordinance (CYPO, Section 4(2)). The Magistrates Court sitting as a Juvenile Court shall have jurisdiction to hear and determine any case in which a child or young person is charged with any offence other than a scheduled offence (CYPO, Section 4(1)).
Where a child or young person is brought before a Juvenile Court for any offence which that court has jurisdiction to hear and determine, it shall be the duty of the court as soon as possible to explain to him in simple language the substance of the alleged offence (Child Act, Section 9(1)).
The Juvenile Court shall have jurisdiction over any offence other than an indictable offence (CYPO, Section 4(1)). The court shall, in the case of indictable offences and if it is of opinion that it is expedient that the case should be summarily disposed of, put to the young person the following or a similar question:
“Do you wish to be tried by this court or by a higher court?”
It is important that the court, together with the above question, explain to the accused child that he/she may consult his parents or guardian or a friend before replying. It is also incumbent upon the presiding officer to explain to the child accused the effect of the matter being so tried and if the matter proceeds in the Juvenile Court and the presiding officer at any stage during the proceedings determines that the matte ought to be heard by a higher court, he/she shall direct that the matter proceed in such a higher court (CYPO, Section 9 (4)(b)(i)).
If the young person or child wishes to be tried by a higher court, the charge should be preferred in a Magistrate’s Court of competent jurisdiction.
The CYPO requires that children and young offenders be detained separately from adults in police stations and courts and juvenile girls shall while detained, being conveyed or waiting, be under the care of a woman (CYPO, Section 13). Sections 14(1), 14(2) and 14(3) of the CYPO provides for bail and/or detention of children and young persons arrested.
Section 122A of the Penal Code makes provision for a medical examination in case of an offence alleged to have been committed by a child of, or above twelve years of age and under fourteen and is as follows:
(1)The officer in charge of the police station who is investigating an offence alleged to have been committed by a child of, or above, twelve years of age and under fourteen years, shall, with the consent of the parent or guardian of such child, cause the child to be examined by a multidisciplinary team comprising of the experts specified in subsection in order to obtain a report whether such child has attained sufficient maturity of understanding which enables the Magistrate having jurisdiction in the case to decide—
(a) The degree of responsibility of such child, taking into consideration the nature and consequences of the alleged offence; and
(b) Whether the child is in need of any therapeutic intervention.
(2) The multidisciplinary team referred to in subsection (1) shall comprise of—
(a) The judicial medical officer of the relevant district;
(b) A pediatric or adolescent psychiatrist; and
(c) A psychologist.
(3) Where such parent or guardian of the child does not consent to the child being so examined, the officer in charge of the police station shall apply to the Magistrate having jurisdiction in the case, for an order authorising such multidisciplinary team to examine such child.
(4) In any event where the judicial medical officer of the relevant district is not available, the officer in charge of the police station who is investigating the offence shall obtain the assistance of a judicial medical officer of any other district to obtain the report referred to in subsection (1).
(5) Such multidisciplinary team shall submit its report to the officer in charge of the police station who shall submit such report to the Magistrate, in order to assist him to form his opinion as referred to in subsection (1) and to make his decision, taking into consideration the provisions of section 76 of the Penal Code.
(6) The child referred to in subsection (1) shall be subject to rehabilitation in the prescribed manner under the supervision and assessment of a paediatric psychiatrist and a psychologist.
Court Procedures for Juveniles
In every case tried by a Juvenile Court, the court shall adopt the following procedure as outlined in section 9(5) of the Child Act:
(a) The court shall ask the child or young person whether he admits that he committed the offence;
(b) If the child or young person does not admit that he committed the offence, the court shall then hear the evidence of the witnesses in support of the charge;
(c) At the close of the evidence-in-chief of each such witness, the court shall ask the child or young person, or if it thinks fit the parent or guardian of the child or young person, whether he wishes to put any question to the prosecution’s witnesses;
(d) The child or young person, or the parent or guardian may, if it is so desired, put any questions accordingly;
(e) The child or young person may, instead of asking any questions, make a statement, if he so desires;
(f) It shall be the duty of the court to put to every witness who gives evidence in support of the charge such questions as appear to the court to necessary;
(g) The court may put to the child or young person such questions as may be necessary to explain anything in any statement made by the child or young person;
(h) If it appears to the court that a prima facie case is made out, the evidence of any witness for the defense shall be taken and the child or young person shall be allowed to give evidence or to make any statement;
(i) If the child or young person admits that he committed the offence or if the court is satisfied on the evidence adduced that the child or young person committed the offence, he shall be asked if he desires to say anything in extenuation of the offence or in mitigation of punishment or otherwise.
According to the CYPO, if the child or young person is found guilty of an offence, he/she may be punished in the following manner:
• Committed to custody in a remand home for a period not exceeding one month (Section 25(1));
• Child of 12 years of a young person may be sent to an approved or certified school (Section 26(1));
• Handover to parents or guardians for custody on condition of keeping good behavior for one year (Section 27(1));
• Place him in charge of some fit person for three years (Section 27(1));
• Conditionally release him (Section 27(1));
• Fine him (Section 28(1));
• Order corporal punishment (6 strokes with a light cane for males only) (Section 29(1));
• Discharge him after due admonition (Section 30).
Convicted child prisoners are usually sent to the following institutions in Sri Lanka:
• Wathpitiwela Training School for Youthful Offenders,
• Pallansena Correctional Centre for Youthful Offenders or/and
• Taldena Correctional Centre for Youthful Offenders.
Women make up a relatively small percentage of crimes committed in Sri Lanka. At the beginning of 2017, female inmates made up just 4.9% of the total prisoner population in Sri Lanka (out of a total prisoner population for the same period of almost 21, 000).
Women are often victims of domestic violence and rape in Sri Lanka and it has been reported that gender insensitivity is prevalent throughout all phases of the criminal justice system including: (i) law enforcement; (ii) prosecution; (iii) adjudication; (iv) correction; and (v) rehabilitation. It must be noted that similar to other jurisdictions that whenever it is necessary to cause a woman to be searched such search shall be done by another woman with strict regard to the accused’s decency (Criminal Code, Section 30).
It is further reported that the lack of gender sensitivity can be seen through the different actors of the criminal justice system including police constables, lawyers, judges, prison officials, judicial medical officers and others. Issues reportedly confronting female prisoners and inmates in Sri Lanka’s prisons (whether they are awaiting trial or convicted) include the following:
• A lack of an effective police presence – although the Women and Children's Bureau has taken steps to increase the number of women and children’s desks in Sri Lanka such desks in each District of the country are unable to provide effective service delivery;
• Overcrowding and poor conditions in prisons;
• Lack of appropriate and sufficient shelters for female victims of crime - including transgender-women; and
• Assistance to and protection of victims of crime (in terms of the Assistance to and Protection of Victims of Crime and Witnesses Act No.4 of 2015) fails to recognize gender dimensions and does not make any specific reference to female victims of crime or afford any special protection to women on the ground of their vulnerabilities.
Lesbian, Gay, Bisexual, Transgender and Intersex
Lesbian, gay, bisexual, transgender, and intersex (LGBTI) persons in Sri Lanka may face legal challenges not experienced by non-LGBTI residents. It remains a taboo subject and they are often associated with scandals.
Article 12 of the Sri Lankan Constitution recognizes non-discrimination based on the grounds of race, religion, language, caste, sex, political opinion, place of birth or any one of such grounds as a Fundamental Right. This measure protects persons from stigmatization and discrimination on the basis of sexual orientation and gender identities. Article 12.1 of the Sri Lankan Constitution ensures equality for sexual orientation and gender identity and laws discriminating on the grounds of sexual orientation and gender identity are unconstitutional. Notwithstanding the aforementioned, both state and non-state discrimination and abuses against LGBTI population reportedly persists.
Sections 365 and 365A of the Penal Code criminalize homosexuality in Sri Lanka by prohibiting “carnal knowledge against the order of nature” and “gross indecency.” This is commonly understood in Sri Lanka to criminalize all same-sex relations between consenting adults.
Sri Lankan law does not specifically criminalize transgender or intersex people but no laws ensure that their rights are protected, and police have reportedly used several criminal offenses and regulations to target LGBTI people - particularly transgender women and men who have sex with men involved in sex work. This includes the vaguely worded Vagrants’ Ordinance, which prohibits soliciting or committing acts of “gross indecency” or being “incorrigible rogues” procuring “illicit or unnatural intercourse.” Some transgender women and men involved in the sex industry have indicated that repeated harassment by police, including instances of arbitrary detention and mistreatment, had eroded their trust in Sri Lankan authorities, and made it unlikely that they would report a crime. The community also reported abuse and harassment at the hands of medical authorities, leading many transgender people to self-medicate rather than seeking professional assistance. Sri Lankan law in this sense remains vague and ambiguous making it open for abuse.
Mentally disabled persons
None of the statues in Sri Lanka provides a legal definition of mental illness. The term used in the Penal Code refers to a mental illness as an ‘unsoundness of mind.’ The term ‘unsound mind’ is also used in the Mental Health Ordinance of 1873, the Code of Criminal Procedure of Sri Lanka of 1979, and the Evidence Ordinance of 1895, to refer to mental illnesses. The term ‘unsoundness of mind’ is considered to be wide enough in scope to include mental illnesses due to a disease of the mind as well as those due to retarded development such as mental retardation.
Nothing is an offence which is done by a person who, at the time of doing it, by reason of unsoundness of mind, is incapable of knowing the nature of the act, or that he is doing what is either wrong or contrary to the law (Penal Code, Section 77). This section completely exonerates criminal responsibility from a defendant deemed to be of unsound mind at the time of the offence. The section provides the legal definition of insanity to be used within the judicial system of Sri Lanka.
The defense of insanity is based on the principle that a person who is of unsound mind or insane at the time of the offense is unable to form the mens rea necessary for the act constituting the crime and thus not subject to punishment.
A request to perform an evaluation to determine criminal responsibility may originate from a Magistrate’s court or from a higher court. The issue may be raised before or during the trial process. The prosecution, defense or the judge may raise the issue of mental unsoundness.
If, as a result of interviews with the client, the defense lawyer considers that the client is not mentally fit to stand trial, the lawyer should liaise with the prosecutor in the case so that the mental condition of the accused can be brought to the attention of a magistrate and an order can be made for a psychiatric investigation into the mental competence of the accused to take place.
In the first instance “complaint means the allegation made orally or in writing to a Magistrate with a view to his taking action under this Code that some person, whether known or unknown, has committed an offence"  In the event that the complaint forms part of court proceedings - "here shall be attached to every summons issued to an accused person a copy of the complaint or report or other document upon which proceedings against him have been instituted together with a list specifying the names and addresses of the witnesses for the prosecution, if any" 
Arrest, Search and Seizure Laws
The arresting officer (peace officer) under the criminal code shall "actually touch or confine the body of the person to be arrested unless there be a submission to the custody, by word or action, and shall inform the person, to be arrested, of the nature of the charge or allegation upon which he is arrested".  It is worth noting that under the code, a “non-cognizable offence” means an offence for which a ”non-cognizable case” means a case in which a peace officer may not arrest without warrant. In specific circumstances, peace officers may arrest without execution of an order from a Magistrate. These circumstances are:
(a) who in his presence commits any breach of the peace;
(b) who has been concerned in any cognizable offence or against whom a reasonable complaint has been made or credible information has been received or a reasonable suspicion exists of his having been so concerned;
(c) having in his possession without lawful excuse (the burden of proving which excuse shall be on such person) any implement of house-breaking;
(d) who has been proclaimed as an offender;
(e) in whose possession anything is found which may reasonably be suspected to be property stolen or fraudulently obtained and who may reasonably be suspected of having committed an offence with reference to such thing;
(f) who obstructs a peace officer while in the execution of his duty or who has escaped or attempts to escape from lawful custody;
(g) reasonably suspected of being a deserter from the Sri Lanka Army, Navy or Air Force;
(h) found taking precautions to conceal his presence under circumstances which afford reason to believe that he is taking such precautions with a view to committing a cognizable offence;
(i) who has been concerned in or against whom a reasonable complaint has been made or credible information has been received or a reasonable suspicion exists of his having been concerned in any act committed at any place out of Sri Lanka.
In the case of an arrest without a warrant, the arrested person must not be detained for more than a period of twenty-four hours. Furthermore, the criminal code explicitly states that such persons must be presented before the appropriate at the earliest opportunity after arrest - "peace officer shall not detain in custody or otherwise confine a person arrested without a warrant for a longer period than under all the circumstances of the case is reasonable, and such period shall not exceed twenty-four hours exclusive of the time necessary for the journey from the place of arrest to the Magistrate" 
In Sri Lanka, an arrested person or suspect can be detained during the period of an investigation - "every inquirer and officer in charge of a station shall have power to authorise the detention of a person during an investigation". Should a longer-term detention be required, then a Magistrate in authority would need to sign off. The criminal code is specific in this event - "if he is satisfied that it is expedient to detain the suspect in custody pending further investigation, may after recoiling his reasons, by warrant addressed to the superintendent of any prison authorize the detention of the suspect for a total period of fifteen days and no more". It is also clear that after this period of time, should proceeding not be entered into against the suspect, then the court, must "either discharge the suspect or require him to execute a bond to appear if and when so required". The arrested person or accused shall only be detained in a safe manner by the appointed authorities for as long as the court permits it. "The superintendent shall, upon delivery to him as aforesaid of the person named in the warrant, detain him and keep him safely in custody on behalf of the court making the detention, commitment or remand for such time as may be specified by the warrant" 
The carrying out of searches is permitted in a variety of situations under the criminal code. Under the code, a court issued warrant is deemed as a necessary legal instrument to enable a peace officer to carry out a search in the first instance and once this warrant has been issued by a Magistrate then - "whenever any place liable to search or inspection.....is closed any person residing in or being in charge of such place shall on demand of the person executing the warrant and on production of the warrant allow him free ingress thereto and afford all reasonable facilities for a search therein".
In the event that a person is suspected of wrongfully confining another person, a Magistrate has the authority to issue a warrant under the law - "if any Magistrate's Court has reason to believe that any person is confined under such circumstances that the confinement amounts to an offence, it may issue a search warrant; and the person to whom such warrant is directed may search for the person so confined and such search shall be made in accordance therewith".
If a search is to be carried out, then the property owner, even an accused or arrested person has the right of attendance during any search - "The occupant of the place searched or some person on his behalf shall in every instance be permitted to attend during the search".
The first exclusionary rule under s24 of the Evidence Ordinance of Sri Lanka has a direct bearing on the criteria of liability where the object of the prohibition, under this section, is to rule out confessions which are caused by a threat, inducement or promise. There is a high degree of probability that confession made in these circumstances will not be true. The second and third exclusionary rule, under s25 and s26 of the Evidence Ordinance, do not depend on the actual unreliability of a confession since it is made to a police officer or made while the accused is in police custody.
Protection against illegal police procedures/actions
The code provides protection to a suspect or arrested person in relation to police procedure with regard to accruing a warrant to carry out a search or to carry out an arrest by a peace officer - "any omission or error as to time and place and any defect in form in any order or warrant given under this section and any omission to comply with the provisions of paragraph (e) shall not be held to render illegal any execution carried into effect under such order or warrant or intended so to have been carried into effect, nor to render any execution illegal which would otherwise have been legal".
Lineups and other identification procedures
The code provides for the holding of court ordered identification parades, for the purposes of identification of the accused alone. "Every Magistrate to whom application is made......shall assist the conduct of an investigation by making and issuing appropriate orders and processes of court, and may, in particular hold, or authorise the holding of, an identification parade for the purpose of ascertaining the identify of the offender".
A police officer (peace officer) has the right to interrogate a suspect under the same Magistrate who issued a warrant for a specific period of time before any formal charge in court - "the right of any police officer to interrogate the applicant with respect to any offence specified in the application". In the event a suspect is charged and released on bail, the police retain the right to request the suspect attend for further interrogation within reason - "such person shall make himself available for interrogation by a police officer, as when required, provided that such interrogation shall not under any circumstances whatsoever be between 6 p.m. in the evening and 6 a.m. in the morning".
Right to Counsel
The arrested person does have the right to have legal counsel appointed in advance of their initial Court hearing and shall be considered innocent until proven otherwise.
RIGHTS OF THE ACCUSED AT ALL TIMES
Criminal Law System
The code provides protection against an instance of double jeopardy - "No person to be tried twice for the same offence".
The right of equality before the law in combination with clearly defined limits of police powers - "The rule of law in this sense is expressed in the maxim, derived from the 19th century liberalism, nulla poena sine lege..."
Presumption of Innocence
The code explicitly states that an accused person has the benefit of the "presumption of innocence" until proven guilty in a court of law.
Standards of Proof and Standards for Conviction
The Criminal Code does not specify the quantum of proof and fails even to indicate which party to the proceedings bears the burden of proof. However the Evidence Ordinance of Sri Lanka, under section 3, defines proof and chapter 9 gives guidelines as to how the several burdens have to be discharged.
Ex Post Facto Punishment
The Constitution of Sri Lanka protects against any form of retroactive penal laws or penalties - "(n)o person shall be held guilty of an offence on account of any act or omission which did not, at the time of such act or omission, constitute such an offence, and no penalty shall be imposed for any offence more severe than the penalty in force at the time such offence was committed".
Fair Trial Rights
The rights of the accused are guaranteed under the Code of Criminal Procedure, Chapter 26. The accused has the right to call witnesses, has the right to be defended by an Attorney-at-law at trial and at any pre-trial hearings, has the right to give evidence on their own behalf, the right not have their life put in danger, if they are not accused of a crime punishable by the death sentence, and the right to appeal.
Freedom from Prolonged pre-trial detention & Freedom from Punishment
Under the Sri Lankan Constitution, the accused person is protected against prolonged pre-trial detention and freedom from cruel or unusual punishment - "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 suet. Judgement made in accordance with procedure established by law". "No person shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment".
Right to Counsel
Whilst the right to access a lawyer is technically bound by the Constitution of Sri Lanka in Sections 6A (2) and (6) of Clause 2 of the Bill, the Centre for Policy Alternatives (CPA) note that the appropriate sections are "drafted in a way that is too broad with no objective criteria to determine the prejudice or effect a detainee's access to a lawyer or the lawyer's access to a police station may have on an investigation being conducted".
Right to Habeas Corpus
The writ of Habeas Corpus is explicitly taken care of by the Court of Appeals - "The Court of Appeal may grant and issue orders in the nature of writs of habeas corpus to bring up before such Court".
Right to Medical Care
During a period of custody, every prisoner is guaranteed the right to medical care under the Prisons Act and that responsibility to provide said care initially is with the attending officer - "The names of prisoners desiring to see the Medical Officer or appearing out of health in mind or body shall be reported by the officer attending them to the jailer; and the jailer shall without delay call the attention of the medical officer to any prisoner desiring to see him".
Right to a fair trial
The right to a fair trial is guaranteed under the Constitution - "Any person charged with an offence shall be entitled to be heard, in person or by an attorney-at-law, at a fair trial by a competent court".
Right to a speedy trial
There is no automatic right to a speedy trial under the law in Sri Lanka as it stands today.
Right to trial by jury
In Sri Lankan High Courts trial by a jury shall be on indictment in the High Court by a jury (Criminal Code, Section 161). The Supreme Court decides the manner in which panels of jurors may be prepared and the mode of summoning, empanelling and challenging of jurors (Sri Lankan Constitution, Section 136(1)(g)).
Right to impartial judge
The right to act impartiality during trial is an international obligation of Sri Lanka - "Sri Lanka, as a State Party to the International Covenant on Civil and Political Rights, it bound to provide a "competent, independent and impartial tribunal [or court] established by law".
Right to appeal
The right to appeal from a Magistrate’s court to the Court of Appeal is guaranteed under law.
Initial Court Appearance
Should an arrestee be living in Sri Lanka, the initial court appearance before a Magistrate must occur not more than twenty-four hours after an arrest - "shall within twenty-four hours from the arrest exclusive of the time necessary for the journey be taken before the nearest Magistrate's Court......such person shall be forthwith released on his executing a bond for his appearance before a Magistrate's Court if so required". Should an arrestee not have a permanent address in Sri Lanka then the arresting peace officer shall take the suspect "forthwith to the nearest Magistrate who may either require him to execute a bond with or without a surety for his appearance before a Magistrate's Court or may order him to be detained in custody until he can be tried".
Once the court is ready and at the very commencement of the trial the "registrar shall in the hearing of the accused read the indictment to the jury and the Judge".
According to s145 of the Code of Criminal Procedure (Amendment) Act, No. 11 of 2018, ‘when the accused appears or is brought before the Magistrate’s Court, the Magistrate shall in a case, (a) where the offence or any one of them where there is more than one, falls within the list of offences set out in the Second Schedule to the Judicature Act; or (b) where the Attorney-General being of opinion that evidence recorded at a preliminary inquiry will be necessary for preparing an indictment, within three months of the date of the commission of the offence so directs, hold a preliminary inquiry according to the provisions hereinafter mentioned.’
S145 of the Code of Criminal Procedure (Amendment) Act, No. 11 of 2018 states, ‘when the accused appears or is brought before the Magistrate’s Court, the Magistrate shall in a case— where the offence or any one of them where there is more than one, falls within the list of offences set out in the Second Schedule to the Judicature Act; or where the Attorney-General being of opinion that evidence recorded at a preliminary inquiry will be necessary for preparing an indictment, within three months of the date of the commission of the offence so directs, hold a preliminary inquiry according to the provisions hereinafter mentioned.’ S146 of the same Act mentions, ‘a Magistrate conducting a preliminary inquiry shall at the commencement of such inquiry read over to the accused the charge or charges in respect of which the inquiry is being held, but upon such reading over the accused shall not be required to make any reply thereto; if any such reply is made, it shall not be recorded by the Magistrate; nor shall any such reply be admissible in evidence against the accused.’ S147 of the same Act states, ‘the officer in charge of the police station where the relevant Information Book is kept shall at the commencement of the inquiry furnish to the Magistrate three certified copies of the notes of investigation and of all statements recorded in the course of the investigation.’ v. Discovery S72 of the Criminal Procedure (Amendment) Act, No. 11 of 2018 speaks to discovery of persons wrongfully confined. It goes on the state that ‘if any Magistrate’s Court has reason to believe that any person is confined under such circumstances that the confinement amounts to an offence, it may issue a search warrant; and the person to whom such warrant is directed may search for the person so confined and such search shall be made in accordance therewith; and the person if found shall be immediately taken before such court, which shall make such order as in the circumstances of the case seems proper.’
Nature of the Trial
S5 of the Criminal Procedure (Amendment) Act, No. 11 of 2018 speaks to the trial of offences under the Penal Code and other laws. Chapter XIII of the Criminal Procedure (Amendment) Act, No. 11 of 2018, covers the area of place of inquiry or trial and highlights the place of trial, where the concerned criminal act is an offence by reason of relation to another offences (s130) and the place of inquiry or trial in various cases (S132). Chapter XVII of the above-mentioned Act deals with the trial of cases where a magistrate’s court has the power to try summarily while Chapter XVII deals with trial by the high court specifically trial by a judge without a jury (section B) and trial by jury (section C). Section D deals with the re-trial of the accused after the discharge of the jury while section F deals with the trails in the high court in the absence of the accused. Chapter XXI speaks to the general provisions as to inquiries and trials.
After pre-trial matters have been completed, the prosecution and defence have the opportunity to give an opening statement. The opening statement allows both sides to give the judge or judge and jury an overview of the case, including what they plan to prove and how they intend to prove it. The Criminal Procedure Code provides for the prosecution and defence respectively to deliver opening statements.
The accused or their pleaders shall be entitled to open their respective cases (Criminal Code, Section 184(3)).
High Court: Trial by judge alone
Following the completion of the prosecutions case, the accused may adduce evidence (Criminal Code, Section 201).
High Court: Trial by jury
Following the completion of the prosecution case, defence counsel may then open his case stating the facts or law on which he intends to rely and making such comments as he thinks necessary on the evidence for the prosecution. He may then call his witnesses and after they have given evidence may sum up his case (Criminal Code, Section 221(1)).
""Delivering an Effective Opening Statement""
Your opening statement is an opportunity to establish the themes of your case, and to present a persuasive and compelling story introducing your witnesses and evidence. The purpose of an opening statement is to tell the court and/or jurors something about the case they will be hearing. It is important to confine an opening statement to facts that will be proved by the evidence – an opening statement should never be argumentative.
The trial begins with the opening statement of the party with the burden of proof. In Sri Lanka the prosecution will deliver its opening statement first and thereafter the defence. Most commonly, defence counsel’s objective in making an opening statement include the following:
• To provide overview of the defence case; • To identify weaknesses in the prosecution case; • Emphasizing the prosecution’s burden of proof; • Summarizing testimony of witnesses, and the role of each in relationship to the entire case; • Describing exhibits which will be introduced and the role of each in relationship to the entire case; • Clarifying juror’s responsibilities; and • To state the ultimate inferences counsel seeks the jury to draw.
Direct Examination (Examination in Chief)
Defence counsel may call witnesses to testify for the defence. He may also call the accused to testify in his defence. The purpose of examination-in-chief is to elicit relevant and admissible evidence from the witnesses in a clear and orderly manner. Most witnesses are not familiar with the rules of evidence and it is therefore necessary for counsel to ask appropriate questions to ensure that only relevant and admissible evidence is given.
Magistrate Court – Trial by Magistrate
The accused shall be allowed to examine any witness not previously named by him if such a witness is in attendance (Criminal Code, Section 222). That prosecuting counsel may by leave of the Judge call witnesses in rebuttal (Criminal Code, Section 223).
The Magistrate shall ask the accused whether or desires to give evidence on his own behalf and whether he desires to call witnesses (Criminal Code, Section 152(1)). If the accused wishes to give evidence but not to call witnesses, the Magistrate shall proceed to take forthwith the evidence of the accused (Criminal Code, Section 152(2)).
The Magistrate shall at the time of committing the accused for trial require the accused to state orally the names of persons whom he wishes to give evidence at trial, distinguishing between those whom he proposes to call to speak to facts and those who are merely to speak to character (Criminal Code, Section 155(1)). The Magistrate will then prepare a list of witnesses named by the accused and shall direct the fiscal to issue a notice on each witness requiring him to appear before the court of trial on a date specified in the notice (Criminal Code, Section 155(2)).
Evidence given by the accused and witnesses shall be taken down in writing (Criminal Code, Section 152(5)).
All statements of the accused recorded in the course of the injury if any in the Magistrate’s Court shall be put in and read in evidence before the close of the case for the prosecution (Criminal Code, Section 219).
High Court – Trial by Judge
Accused may make his defence and may examine witnesses (if any) and the accused person or his pleader may then sum up his case (Criminal Code, Section 201).
High Court – Trial by Jury
The accused or his pleader open the case stating the facts or law on which he intends to rely and making such comments as he thinks necessary on the evidence for the prosecution. He may then call his witnesses and after they have given evidence may sum up his case (Criminal Code, Section 221(1)).
The defence lawyer should carefully plan the sequence of his questions. The aim must be to extract the evidence in a clear and systematic fashion. The questions should follow a logical sequence so that the evidence can be readily understood. If when asking questions the lawyer does not follow a logical order, the witness may become confused and the judge or jury will have difficulty in following and understanding the evidence of the witness.
The best way of obtaining evidence is to allow the witnesses to give their own description of the events. After they have finished relating the events, questions can be put to clarify points. However, questions can be put to help the witnesses to relate their own version of events but the witnesses must not be told what to say or questioned in such a way as to suggest the answers to the questions. The questions posed should be kept short and clearly and simply formulated so that they can be readily understood by the witnesses.
It is important to find out from potential witnesses what they actually know about the events in question. It is dangerous to rely upon what the accused or her/his relatives say that certain witnesses know and to subpoena such persons as witnesses based upon what you have been told they will say. Possible defence witnesses should be interviewed to see what they know about salient matters. They can be called if they can give testimony favorable to the defence case.
A problem may arise where the legal practitioner finds from interviewing a witness that the witness could provide valuable evidence for the defence, but the witness has indicated that she/he is unwilling or reluctant to give this testimony in court. If the testimony of the witness is vital to the defence, the defence may have to have the witness subpoenaed. In deciding whether to have a reluctant witness subpoenaed the defence lawyer will have to consider what evidence she/he is likely to be able to extract from the reluctant witness in court and whether her/his testimony will do his client any good.
""Calling the Accused to Give Evidence""
Defence counsel needs to decide whether the accused should give testimony in his/her own defence. This is a strategic litigation decision and a discussion must take place between counsel and the accused as to whether it is advisable for the accused to testify.
The most practical way to consider this is by determining, at the end of the prosecution’s case, whether there is any prima facie incriminating evidence implicating the accused. If there is, it means the accused has a case to answer. In such a case it is safer to advise the accused to testify. The reason for this is that if the accused elects not to give evidence and there is evidence implicating him/her in the charges, the court’s reaction may be to believe that he/she has something to hide and (the court) may draw an adverse conclusion based on that refusal.
Conversely, if in a specific matter the prosecution’s case is weak (because of a lack of evidence, poor testimony from prosecution witnesses and/or good cross-examination by defence counsel) and there is no prima facie evidence against the accused, it is often more advisable for defence counsel to advise the accused not to testify (opting to exercise his/her right to remain silent) especially if the accused will make a poor witness as this may only end up strengthening the State’s case.
In any matter it remains a calculated risk whether or not the accused should testify – this calculation will be based on the merits of each case. It is counsel’s duty to consider the strengths and weaknesses of both the prosecution and defence case and advise the client accordingly whether it is necessary for him/her to testify.
This is the process and line of questioning of witnesses by the opposing side after the testimony has been adduced during examination-in-chief.
The purpose of cross-examination is to test the accuracy, honesty and voracity of evidence presented during evidence-in-chief. The aims of cross-examination include trying to get the witness to add to, alter, qualify, amend or retract evidence given. Cross-examination is also used to discredit witnesses and their evidence and to elicit evidence more favorable to the cross-examining party. Cross-examination usually encompasses most or all of the above goals but is done principally to elicit testimony favorable to your own case and to expose weaknesses in your opponent’s case.
As a general practice defence lawyers should be pleasant and courteous in dealing with a witness. However, it is sometimes necessary to adopt a firm, even somewhat aggressive approach when dealing with a hostile, uncooperative or facetious witness.
In the Magistrates Court, the accused shall be permitted to cross-examine all witnesses called for the prosecution and called or recalled by the Magistrate (Criminal Code, Section 184(2)).
The accused shall be permitted to cross-examine all witnesses called for the prosecution (Criminal Code, Section 199(5)).
""Practical Points on Cross-Examination:""
• A defence lawyer may not cross-examine his own witness; • A defence lawyer should be able to point to many major discrepancies in a witness’s testimony to question his/her credibility; • Leading questions are allowed in cross-examination and the court should normally allow greater latitude than in examination-in-chief; • The failure to cross-examine a witness on any matter generally implies an acceptance of his evidence on that point.
Further to the above and in Preparing for Cross-Examination, Counsel:
• Must consider how cross-examination of individual witnesses is likely to generate helpful information; • Anticipates those witnesses the prosecutor might call in its case-in-chief or in rebuttal as well as the evidence they are likely to give; • Creates any necessary cross-examination plan for each anticipated witness; • Is alert to inconsistencies or possible variations in witness testimony and highlights these to the court; • Reviews prior statements of witnesses and any prior relevant testimony of the prospective witnesses; • Where appropriate, reviews relevant statutes and local police regulations for possible use in cross examining police witnesses; • Is alert to issues relating to witness credibility, including bias and motive for testifying and highlights these issues through cross-examination.
Defence lawyers should NEVER ask who, what, where, when, why, how, describe and explain during cross-examination. There are words requiring explanation that you do not want to elicit during cross-examination. The goal of cross-examination is to target the prosecutor’s case and to advance the accused’s theory of the case without giving the witness an opportunity to explain their answers. You want the witness to agree with your version of events, not develop their own.
After a witness has been cross-examined, the party originally calling him may put further questions to him. There are, however, strict limits to the type of questions which may be put and the judge or magistrate must ensure that their limits are not exceeded by the questioner. Only questions relating to matters raised in cross-examination may be put; leading questions may not be put. New matters may only be introduced if the judge or magistrate grants leave to do so.
Closing Arguments (Closing Summation)
A closing argument, is the concluding statement of each party’s counsel. It usually reiterates the most important facts and evidence for the trier of fact - either the judge or jury.
A closing argument occurs at the end of a trial after the presentation of all evidence. In criminal cases, the prosecution presents its’ closing argument followed by the defence. The prosecution is usually permitted a final rebuttal argument as it carries the burden of proof in criminal cases. If a trial is heard by a jury the judge will usually give the jury its final instructions after hearing the respective parties’ closing arguments. Defence counsel should use the closing summation not only to highlight weaknesses in the prosecutions argument but also to describe favorable inferences that can be drawn from the evidence.
During the summation, all of the evidentiary pieces should be brought together and the case should be presented in a strong, fluid, and persuasive manner. All points that help prove the elements establishing the theory of the case must be fully explained. The closing should be performed in a simple, yet precise way.
According to s315 of the Criminal Procedure (Amendment) Act, No. 11 of 2018, ‘the plea of a previous acquittal or conviction may be pleaded either orally or in writing and may be in the following form or to the following effect: “the defendant says that by virtue of section 314 of the Code of Criminal Procedure Act he is not liable to be tried”.’ According to s260 of the above Act, ‘subject to the provisions of this Code and any written law, every person accused before any criminal court may of right be defended by an Attorney-at-Law, and every aggrieved party shall have the right to be represented in court by an attorney-at-law.
S2 of the Criminal Procedure (Amendment) Act, No. 11 of 2018 describe what the role of an attorney general is in the Republic of Sri Lanka including an acting attorney-general. S6 of the same Act goes on to speak to the powers of the attorney-general stating, ‘anything in this Code shall not be construed as derogating from or limiting the powers or jurisdiction of the … Attorney-General".
S133, of the above mentioned Act states, ‘whenever any doubt is entertained by a Magistrate as to the Magistrate’s Court by which any offence should be inquired into, such Magistrate may embody the ascertained facts in the form of a case and transmit the same to the Attorney-General for his opinion, and the Attorney-General shall thereupon decide in which court the offence shall be inquired into and such court shall thereupon have jurisdiction to inquire into such offence.
With regard to the attorney-at-law, it is defined as a ‘pleader with reference to any proceeding in court’ under s2 of the above Act. S152 speaks to the role of such attorneys stating, ‘if the accused in answer to the question states that he wishes to give evidence but not to call witnesses, the Magistrate shall proceed to take forthwith the evidence of the accused, and after the conclusion of the evidence of the accused, his Attorney-at-Law (if the accused is represented) shall be heard on his behalf, if he so desires. If the accused, in answer to the question, states that he desires to give evidence on his own behalf and to call witnesses or to call witnesses only, the Magistrate shall proceed to take either forthwith, or, if a speech is to be made by an Attorney-at-Law on behalf of the accused, after the conclusion of the speech, the evidence of the accused, if he desires to give evidence himself, and of any witness called by him who knows anything relating to the facts and circumstances of the case or anything tending to prove the innocence of the accused.
S190 of the above Act allows an accused to be discharged by a magistrate with a sanction of an attorney-general and with the fulfillment of the requirements listed under s194 of the above Act, and an attorney-general may withdraw an application.
According to s257 of the above Act, ‘the attorney-general at any stage after commitment but before judgment is pronounced may, with the view of obtaining on the trial the evidence of any person supposed to have been directly or indirectly concerned in or privy to any such offence, tender or authorise the Magistrate to tender a pardon on the same condition to such person.
According to s360 of the above Act, ‘the attorney-general shall appear for the State in every appeal to the Court of Appeal under this Code to which the State or a public officer is a party and all such documents, exhibits and other things connected with the proceedings as the attorney-general may require for the purpose of his duties under this section shall be transmitted to him by the Registrar of the court having custody of such documents, exhibits and things. The Solicitor-General or a State Counsel or an Attorney-at-Law specially or generally authorised by the Attorney-General in that behalf shall be entitled to appear for the State in place of the Attorney-General in any such appeal.
According to S148 (1) of the Criminal Procedure (Amendment) Act, No. 11 of 2018, ‘the Magistrate shall then take, in the presence of the accused and in the manner hereinafter provided, the statements on oath or affirmation of those who know the facts and circumstances of the case, and put them in writing (called the depositions): Provided that the Magistrate shall not except where the Attorney-General otherwise directs summon and record the evidence of any expert witness but shall only cause such witness’s report to be produced and filed of record.’ According to S397(2) of the above Act, ‘the Attorney-General may if he thinks it necessary, direct the Magistrate to record the evidence of any expert witness or police officer and the Magistrate shall then comply with such directions.’
According to s2 of the Criminal Procedure (Amendment) Act, No. 11 of 2018, a judge is defined as, ‘the presiding officer of a court and includes a Judge of the Supreme Court, Court of Appeal, High Court, District Court, Magistrate’s Court and Primary Court as the context may require and includes an acting Judge of such court.’
According to s161 of the Criminal Procedure (Amendment) Act, No. 11 of 2018, ‘subject to the provisions of this code or any other law, all prosecutions on indictment instituted in the High Court shall be tried by a Judge of that Court: Provided that in any case where at least one of the offences falls within the list of offences set out in the Second Schedule to the judicature Act, No 2 of 1978, trial shall be by a jury, before a Judge, if and only if, the accused elects to be tried by a jury.
S195 of the Criminal Procedure (Amendment) Act, No. 11 of 2018 speaks to the duty of the judge upon the receipt of an indictment. His duties include: ‘causing the accused to appear or to be brought before him; causing a copy of the indictment with its annexes to be served on each of the accused who will be tried upon that indictment; informing the accused of the date of trial; and subject to the provisions of section 403, direct the accused to execute a bond to appear in court for his trial or by warrant addressed to the superintendent of any prison authorise the detention of the accused pending his trial; causing the accused to be finger-printed and forward the prints to the Registrar of Finger Prints for examination and report to the prosecuting State Counsel; and if the indictment relates to an offence triable by a jury, inquire from the accused whether or not he elects to be tried by a jury; where trial is to be by a jury direct the accused to elect from which of the respective panels of jurors the jury shall be taken for his trial and inform him that he shall be bound by and may be tried according to the election so made; where the accused on being asked by court so requests, assign an Attorney-at-Law for his defence.
According to s208(1) of the same Act, ‘the prosecuting counsel or the accused may apply to the High Court at the sessions where the trial is pending for an order requiring a special jury to be summoned to try any case; and the Judge before whom such application comes up, shall if he considers such application just and reasonable make an order accordingly.
S230 of the abovementioned Act, speaks to the duty of the judge at the conclusion of the trial. The judge is to: ‘decide all questions of law arising in the course of the trial and especially all questions as to the relevancy of facts which it is proposed to prove and the admissibility of evidence or the propriety of questions asked by or on behalf of the parties, and in his discretion to prevent the production of inadmissible evidence whether it is or is not objected to by the parties; decide upon the meaning and construction of all documents given in evidence at the trial; decide upon all matters of fact which it may be necessary to prove in order to enable evidence of particular matters to be given; decide whether any question which arises is for himself or for the jury.
S303 of the Criminal Procedure (Amendment) Act, No. 11 of 2018, speaks to the suspending the sentence of imprisonment by the court, in whole or part, provided reasons are stated in writing and in the appropriate circumstance, where there is a need to protect the victim or the community from the offender. S451A of the same Act, mentioned above, speaks to the warrant of granting custody of a victim to a place of safety.
Sentencing is at the discretion of the presiding Magistrate and shall remain detained under the order of the President of the Court - "when any person has been sentenced under section 53 of the Penal Code to be detained during the President's pleasure he shall, notwithstanding any enactment of the contrary, be liable to be detained in such place and under such conditions as the President may from time to time direct, and whilst so detained shall be deemed to be in legal custody".
Should an accused be found guilty the court will normally proceed to sentence the accused. Sentencing proceedings are usually conducted directly after the proceedings on the merits have been concluded or can be done at a later date in the court’s discretion (usually one of the parties may also apply for the proceedings to be conducted at a later date).
Generally, the court will impose a sentence that is within a range set by statute for the crime committed. The schedule of sentences of the sentencing range is codified in the Code of Criminal Procedure.
Sentencing Framework in Sri Lanka
A High Court may impose any sentence or other penalty prescribed by written law (Criminal Code, Section 13).
Sentences which a Magistrate’s Court may impose are set out in section 14 of the Code of Criminal Procedure. This includes:
(a) imprisonment of either description for a term not exceeding two years; (b) fine not exceeding one thousand five hundred rupees; (c) … [S 14(c) replaced by s 2 of Act 21 of 2005.] (d) any lawful sentence combining any of the sentences aforesaid [S 14(d) amended by s 2 of Act 21 of 2005.]
The Code envisages a sentence of detention in the precincts of court in lieu of imprisonment:
Any court may, in any circumstances in which it is empowered by any written or other law to sentence an offender to imprisonment, whether in default of payment of a fine or not, in lieu of imposing a sentence of imprisonment, order that the offender be detained in the precincts of the court until such hour on the day on which the order is made, not being later than 8 pm, as the court may specify in the order (Criminal Code, Section 15(2)).
The courts also have the power to sentence an accused to imprisonment where such person is in default of payment of a fine (Criminal Code, Section 15(3)).
Where an accused is sentenced upon being convicted for several offences at one trial, section 16(1) of the Code of Criminal Procedure determines as follows:
When a person is convicted at one trial of any two or more distinct offences the court may, subject to section 301, sentence him for such offences to the several punishments prescribed therefore which such court is competent to inflict; such punishments when consisting of imprisonment to commence, unless the court orders them or any of them to run concurrently, the one after the expiration of the other in such order as the court may direct, even where the aggregate punishment for the several offences is in excess of the punishment which the court is competent to inflict on conviction of one single offence.
The above is subject to an inherent provision (in section 16(1)) determining that if the case is tried by a Magistrate’s Court the aggregate punishment shall not exceed twice the amount of punishment which such court in the exercise of its ordinary jurisdiction is competent to inflict.
Upon a verdict of not-guilty, counsel explains to the accused that he is free to go.
- Magistrate Court – Trial by Magistrate
In the Magistrates court, the Magistrate after taking the evidence for the prosecution and defence and any further evidence, finds the accused not guilty, he shall forthwith record a verdict of acquittal. If he finds the accused guilty he shall forthwith record a verdict of guilty and pass sentence upon him according to law and shall record such sentence (Section 185 Criminal Procedure Code). The Magistrate’s Court may impose the following sentences: (1) Imprisonment of either description for a term not exceeding two years (Criminal Code, Section 14(a)); (2) Fine not exceeding one thousand five hundred rupees (Criminal Code, Section 14(b)); (3) Any lawful sentence combining any of the sentences aforesaid (Criminal Code, Section 14(d)).
- High Court – Trial by Jury
The High Court may impose any sentence or other penalty prescribed by written law (Criminal Code, Section 13). Unless otherwise ordered by the Judge the jury shall return a verdict on all the charges on which the accused is tried and the Judge may ask them such questions as are necessary to ascertain what their verdict is (Criminal Code, Section 235(1)). If the Judge does not approve the verdict returned by the Jury he may direct them to reconsider their verdict, and the verdict after such reconsideration shall be deemed to be the true verdict (Criminal Code, Section 235(2)). If the accused is convicted the Judge shall forthwith pass judgment on him according to the law (Criminal Code, Section 238).
- High Court – Trial by Judge
When the case for the prosecution and defence are concluded, the Judge shall forthwith or within ten days of the conclusion of the trial record a verdict of acquittal or conviction giving his reasons and if the verdict is one of conviction pass sentence on the accused according to the law (Criminal Code, Section 203).
When a person is convicted of an offence, the court may order the person to pay within such time or in such installments as the court may direct, such sum by way of compensation to any person affected by the offence as to the court shall seem fit (Criminal Code, Section 17(4)).
If the offender referred to in 17(4) is under the age of sixteen years the court may, if it deems fit, order the payment to be made by his parent or guardian (Criminal Code, Section 17(5)).
Any sum awarded whether by way of costs or compensation shall be recoverable as if it were a fine imposed by the court (Criminal Code, Section 17(6)). Compensation is not to exceed one hundred thousand rupees (Criminal Code, Section 17(7)).
Provisions as to sentences of fines are set out in section 291 of the Criminal Procedure Code.
Community Service Orders
Section 18(1) of the Code of Criminal Procedure, states the following
The court may, in lieu of imposing a sentence of imprisonment on conviction of an accused person, or in lieu of a fine, enter an order for the convicted person to perform such services as may be specified in such order, at a named place – (a) In a State or State-sponsored project; (b) In a Government department, public corporation, statutory board or any local authority; or (c) In a charitable institution, social service organization or a place of religious worship, with the consent of the person in charge of such institution, organization or place, under the direction and supervision of an authorized officer.
The duration of the Community Service Order shall be for such number of hours being in the aggregate not less than forty hours and not more than two hundred and forty hours, as may be specified in such order, to be served within a period of one year commencing from the date on which the order is entered (Criminal Code, Section 18(2)).
No one shall be sentenced to an imprisonment less than seven days (Criminal Code, Section 15(1)).
A defendant retains the right to appeal to either the Court of Appeals or the Supreme Court, depending on the nature and seriousness of the crime. The right to counsel in this instance is not guaranteed by the State.
Any person who is dissatisfied with any judgment or final order pronounced by a court in a criminal case may lodge an appeal to the Court of Appeal against such judgment for any error in law or fact.
Magistrates Court to Court of Appeal
The procedure and rules to lodge an appeal against an order of a magistrate’s court are set out in section 320(1) of the Code of Criminal Procedure:
Any person who shall be dissatisfied with any judgment or final order pronounced by any Magistrate’s Court in a criminal case may prefer an appeal to the Court of Appeal against such judgment for any error in law, or in fact—
(a) by lodging within fourteen days from the time of such judgment or order being passed or made, with such Magistrate’s Court a petition of appeal addressed to the Court of Appeal, or
(b) by stating within the time aforesaid to the Registrar of such court or to the jailer of the prison in which he is for the time being confined his desire to appeal and the grounds therefore, providing at the same time a stamp of the value of five rupees, and it shall thereupon be the duty of such Registrar or jailer as the case may be, to prepare a petition of appeal and lodge it with the court by which such judgment or order was pronounced.
In computing the time within which an appeal must be preferred, the day on which the judgment or order complained of was pronounced shall be included, but all public holidays shall be excluded (Criminal Code, Section 321(1)).
In dealing with an appeal under this Chapter the Court of Appeal if it thinks additional evidence to be necessary, may either take such evidence itself or direct it to be taken by any Magistrate (Criminal Code, Section 329(1)). The taking of such evidence shall be deemed an inquiry under Chapter XV (Criminal Code, Section 329(4)).
Any party aggrieved by any conviction, sentence or order entered or imposed by the Magistrate’s Court may subject to provisions of any law of appeal, has the right to appeal (Judicature Act, Section 31).
High Court to Court of Appeal
Any person who stands convicted of any offence by the High Court may appeal to the Court of Appeal (Judicature Act, Section 14).
In a Case Tried With a Jury
Section 14(a) of the Judicature Act provides as follows:
(i) against his conviction on any ground which involves a question of law alone; or (ii) against his conviction on any ground which involves a question of fact alone, or a question of mixed law and fact; or (iii) with the leave of the Court of Appeal against the sentence passed on his conviction, unless the sentence is one fixed by law.
Appeal with Jury Verdict
Section 334 of the Code of Criminal Procedure outlines a determination of an appeal in cases where trial was by jury:
(1) The Court of Appeal on any appeal against conviction on a verdict of a jury shall allow the appeal if it thinks that such verdict should be set aside on the ground that it is unreasonable or cannot be supported having regard to the evidence, or that the judgment of the court before which the appellant was convicted should be set aside on the ground of a wrong decision of any question of any law or that on any ground there was a miscarriage of justice, and in any other case shall dismiss the appeal: Provided that the court may, notwithstanding that it is of opinion that the point raised in the appeal might be decided in favour of the appellant, dismiss the appeal if it considers that no substantial miscarriage of justice has actually occurred.
(2) Subject to the special provisions of this Code the Court of Appeal shall, if it allows an appeal against conviction, quash the conviction and direct a judgment of acquittal to be entered: Provided that the Court of Appeal may order a new trial if it is of opinion that there was evidence before the jury upon which the accused might reasonably have been convicted but for the irregularity upon which the appeal was allowed.
(3) Anything in this section shall not affect the power of the Court of Appeal to order a new trial when the trial at which the conviction was had was a nullity by reason of any defect in the constitution of the court or otherwise.
(4) If it appears to the Court of Appeal that an appellant, though not properly convicted on some charge or part of the indictment, has been properly convicted on some other charge or part of the indictment, the court may either affirm the sentence passed on the appellant at the trial or pass such sentence in substitution therefor as it thinks proper and as may be warranted in law by the verdict on the charge or part of the indictment on which the court considers that the appellant has been properly convicted.
(5) Where an appellant has been convicted of an offence and the jury could on the indictment have found him guilty of some other offence, and on the verdict of the jury it appears to the Court of Appeal that the jury must have been satisfied of facts which proved him guilty of that other offence, the court may, instead of allowing or dismissing the appeal, substitute for the verdict found by the jury a verdict of guilty of that other offence, and pass such sentence in substitution for the sentence passed at the trial as may be warranted in law for that other offence, not being a sentence of greater severity.
(6) Where on the conviction of the appellant the jury have found a special verdict, and the Court of Appeal considers that a wrong conclusion has been arrived at by the court before which the appellant has been convicted on the effect of that verdict, the Court of Appeal may, instead of allowing the appeal, order such conclusion to be recorded as appears to the court to be in law required by the verdict and pass such sentence in substitution for the sentence passed at the trial as may be warranted in law.
Appeal with Judge Alone Verdict
Section 335 of the Code of Criminal Procedure outlines the determination of appeals in cases where trial was without a jury and by judge alone:
(1) In an appeal from a verdict of a Judge of the High Court at a trial without a jury the Court of Appeal may if it considers that there is no sufficient ground for interfering dismiss the appeal.
(2) In an appeal from a conviction by a Judge of the High Court at a trial without a jury the Court of Appeal may—
(a) reverse the verdict and sentence-and acquit or discharge the accused or order him to be re-tried; or
(b) alter the verdict maintaining the sentence or without altering the verdict increase or reduce the amount of the sentence or the nature thereof or substitute a conviction for a different offence of which the accused person could have been found guilty on the indictment and pass such sentence as may be warranted by law in substitution for the sentence passed.
Outcome of Appeal
On an appeal against the sentence whether passed after trial by jury or without a jury, the Court of Appeal shall, if it thinks that a different sentence should have been passed, quash the sentence, and pass other sentence warranted in law by the verdict (whether more or less severe) in substitution therefore as it thinks ought to have been passed and in any other case shall dismiss the appeal (Criminal Code, Section 336).
Appeal to Supreme Court
There shall be a right of appeal to the Supreme Court in accordance with the provisions of the Constitution and of any other law from any judgment or order of the Court of Appeal in any appeal from the High Courts or the Magistrates Courts (Judicature Act, Section 37).
THE LEGAL AID SITUATION IN SRI LANKA
The Legal Aid Commission
The Legal Aid Commission (LAC) of Sri Lanka was established in 1978 and at present has 76 Centres Island wide. The role of the LAC is to provide legal advice and free assistance of lawyers to low income groups and to create awareness in the entire society on legal procedures. To obtain assistance from LAC, clients must show a monthly income of Rs. 15,000 or less.
The litigation services provided by LAC include the following: land, divorce, money recovery, accident compensation, domestic violence, spousal and child maintenance, labour debt reconciliation board matters, rent board matters, bail, appeals, and fundamental rights violation cases. The LAC rarely accepts criminal law cases and as a result indigent accused persons are forced to navigate the legal system on their own.
RIGHTS IN PRISON
Conditions of confinement
The code specifies that all prisoners must be held in humane conditions and their basic food, clothing and bedding must be provided without the taking of a fee - "the food, clothing, and bedding issued to each prisoner or each class of prisoners shall, without prejudice to the provisions of sections, 59, 60, and 61, be in accordance with such rules as may be made in that behalf under section 94", and "No money shall be taken by any prison officer by way of garnish, fee, or gratuity from any prisoner or any person on his behalf or account, on his entrance into or discharge from or during his detention in the prison, under any pretence whatsoever".
Right to medical care in prison/mental health care
Right to medical care whilst in prison addressed in the previous section. Prison infrastructure is poor and old combined with not well-equipped consultation rooms makes it difficult to have good sanitation and it affects the health of prisoners.
Restriction of rights
The Constitution of the Democratic Socialist Republic of Sri Lanka provides for temporary restrictions on fundamental rights if national security issues are involved.
Women's rights in prison
The criminal code details the specific rights enjoyed by female inmates in Sri Lankan prisons. There must be a least one female officer in each prison, and additionally female prisoners are to be dealt with only by female officers - "In every prison in which female prisoners are detained there shall be at least one female officer" and "provided that the persons of females shall be searched by some female prison officer" and that "males shall be separated from females" at all times also.
OTHER RELEVANT DOMESTIC LAWS
Capital punishment, also known as the death penalty, is a government-sanctioned practice whereby a person is killed by the state as a punishment for a crime. The sentence that someone be punished in such a manner is referred to as a death sentence, whereas the act of carrying out the sentence is known as an execution. Crimes that are punishable by death are known as capital crimes or capital offences.
Whilst capital punishment is a legally enforceable sentence since its reintroduction in 2004, it is only enforceable in the case of treason, rape, murder or drug related conviction.
When a person is sentenced to death the sentence shall direct that he be hanged by the neck till he is dead on a day and at a place, decided upon by the President (Criminal Code, Section 285).
Although capital punishment is still legal in Sri Lanka (de jure) the practice is in fact abolitionist de facto: Sri Lanka’s last execution occurred in 1976 and the country stopped hangings since 1976. Death row prisoners spend life terms in jail.
The Penal Code provides: “Sentence of death shall not be pronounced on or recorded against any person who, in the opinion of the court, is under the age of eighteen years; but, in lieu of that punishment, the court shall sentence such person to be detained.”
The Penal Code provides that “Sentence of death shall not be pronounced on or recorded against any woman who is found in accordance with the provisions of section 282 of the Code of Criminal Procedure Act, to be pregnant at the time of her conviction; but, in lieu of that punishment, the court shall sentence her to imprisonment of either description for life or for any other term.”
Sri Lanka is a party to the ICCPR and Convention on the Rights of the Child (CRC) which prohibit such executions.
Human Rights Abuse by Police
The Sri Lankan legal system has several mechanisms available for victims of police abuse. As a first step, victims can file a First Information Report (FIR) with the police. Unfortunately, these are almost always unsuccessful, as police either refuse to record the complaint or try to pressure victims not to file the FIR. Secondly, victims may file complaints against police abuse with the local courts however, court fees, attendances at court and attorney fees for each appearance, generally takes years before cases are heard properly, if at all. Thirdly, Sri Lankan law allows for a direct appeal to the Supreme Court in Colombo if a fundamental right enshrined in the constitution has been violated. These applications must be made within 30 days of the alleged abuse.
Torture prevention in the legal framework of Sri Lanka
Sri Lanka ratified the CAT on 3 January 1994 and torture is specifically outlawed in Sri Lanka by the Convention Against Torture and Other Cruel Inhuman or Degrading Treatment or Punishment Act 22 of 1994 (this piece of legislation was enacted to give domestic effect to the provisions of the CAT in Sri Lanka).
Sri Lankan courts have also ruled (See the matter of De Silva v. Fertilizer Corporation  2 SLR 393) that mental aggression can constitute torture.
Yet, despite these laws and safeguards protecting individuals from physical or psychological harm, the reality is that lawyers in Sri Lanka are regularly confronted with detainees who have been the victims of ill-treatment or torture. In 2016, the UN Special Rapporteur on torture and other cruel, inhuman and degrading treatment or punishment stated categorically in his report on Sri Lanka (dated 7th May 2016) “... that torture is a common practice carried out in relation to regular criminal investigations.”
Recently, the Human Rights Commission of Sri Lanka (HRCSL) found that Sri Lanka’s police “seriously violated the human rights of the people.” According to the chairperson of the HRCSL, the Commission received 5,614 complaints in the first nine months of its work. Of these, 1,174 were against the police for illegal detention and torture. According to the HRCSL the most important difficulties stemmed from police conduct during detention and the interrogation phases. It was further highlighted that between January and September 2017 the Commission recorded 249 cases of torture, 298 cases of arbitrary detention and 323 cases of threatening behavior.
During 2017, a subsequent UN Special Rapporteur on torture and other cruel, inhuman and degrading treatment or punishment in Sri Lanka reported that “the use of torture has been, and remains today, endemic and routine, for those arrested and detained on national security grounds” and that “80% of those most recently arrested under the Prevention of Terrorism Act in late 2016 complained of torture and physical ill-treatment following their arrest.”
Prevention of Terrorism Act
The Prevention of Terrorism Act (PTA) provides police with broad powers to search, arrest, and detain suspects. The underlying purpose of the Act is to suppress dissidents.
Core Human Rights Issues with the Act and its Implementation
The PTA allows courts to admit as evidence any statements made by the accused at any time and provides no exception for confessions extracted by torture. It is reported that an estimated 70 to 130 individuals remained in detention from prior PTA arrests.
Interviews by human rights organizations found that torture remained endemic throughout the country, including for those charged with offenses under the PTA. Suspects arrested under the PTA, including since the war ended in 2009, gave accounts of torture and mistreatment, forced confessions, and denial of basic rights such as access to lawyers or family members.
Under the PTA, the ability to challenge detentions is particularly limited. Detainees may be held for up to 18 months without charge, but in practice authorities often held PTA detainees for longer periods. Judges require approval from the Attorney-General’s Department to authorize bail for persons detained under the PTA, which the office normally does not grant.
In 2017 the UN Special Rapporteur on the promotion and protection of human rights and fundamental freedoms while countering terrorism reported that of 81 prisoners in pretrial detention awaiting the police investigation to be completed and the Attorney-General’s Department filing of charges for offences under the PTA 70 had been in detention without trial for more than five years, and 12 had been in detention without trial for more than 10 years.
In Sri Lanka, the law in general requires authorities to inform an arrested person of the reason for the arrest and arraignment of that person (before a magistrate within 24 hours for minor crimes and 48 hours for grave crimes). For purposes of the PTA, it is 72 hours and it has been reported in some instances that more time reportedly elapsed before some detainees appeared before a magistrate - particularly in PTA cases.
International Convention for the Protection of All Persons from Enforced Disappearance Act (No. 5 of 2018)
The Interntational Convention for Protection of All Persons from Enforced Disappearances is to ensure the right to justice and reparation to victims of enforced disappearance. The Act provides that every Sri Lankan citizen has the freedom to live without fear of being a victim of enforced disappearance or abduction. The Act does not have retrospective operation, and will only apply to allegations of enforced disappearances committed from 2018 onwards.
Office on Missing Persons Act (No. 14 of 2016)
The Office on Missing Persons (OMP) is a national mechanism which will assist the country to put an end to disappearances and address the grief of families. The OMP is empowered to investigate and trace tens of thousands of cases of persons forcibly disappeared during two insurgencies and a 26 years civil war. The OMP is an indepedent body reporting to Sri Lanka’s Parliament and to families of the disappeared.
The OMP is mandated to search and trace missing persons, clarify the circumstances in which persons have gone missing and their fate, make recommendations towards addressing incidents of missing persons, protect the rights and interests of missing persons, indentify avenues of redress for missing persons and relatives of missing persons, collect data related to missing persons being carried out or previously carried out by other institutions, organizations, Government departments and commissions of inquiry.
Power of OMP
The OMP has investigative powers to receive information from a relative of a missing person or any other person or organization, and to initiate an inquiry and/or investigation into the whereabouts and/or circumstances of disappearance pursuant to a complaint made to the OMP or on the basis of information received previously by Commissions of Inquiry.
The OMP will take all necessary steps to investigate cases of missing person by procuring and receiving statements (written or oral), examine witnesses, summon person residing in Sri Lanka, admit any statement or material which may be inadmissible in civil or criminal proceedings, establish process to accept confidential information to ensure personal security for victims and witnesses, apply to appropriate Magistrate’s Court for an order to carry out exhumations/excavations of suspected grave site, authorize specified officer of OMP to enter without warrant and investigate any place of detention, police station or prison in which a person is suspected to be detained or has previously been suspected to be detained, make an application for search warrant to search premises suspected to contact evidence.
When it appears to the OMP that an offence within the Penal Code or any other law has been committed, a report will be completed and tendered to the relevant law enforcement or prosecuting authority.
Functions and Duties of the OMP
When the OMP has sufficient material to conclude that the person to whom the complaint relates is a missing person, it shall issue an interim report to the relative of such missing person and enable the Registrar General to issue a Certificate of Absence or a Certificate of Death.
The OMP will provide or facilitate administrative assistance and welfare services including where required psycho-social support, to the relatives of the missing person, to recommend to the relevant authority grant reparations to missing persons and/or relatives, to develop and enforce a system for victim and witness protection, create and maintain a database for including particulars of missing persons, create public awareness of causes, incidence and effects of missing persons and facilitating their access to economic, psycho-social, legal and administrative support.
Tracing Unit and Victim and Witness Protection
There will be a Tracing Unit of the OMP, which will be responsible for tracing and searching missing persons and will be compromised by competent, experienced and qualified investigators, including relevant technical and forensic expertise.
There will also be a Victim and Witness Protection Division that will protect the rights and address the needs and concerns of victims, witnesses and relatives of missing persons.
Registration of Deaths (Temporary Provisions Amendment) Act (No. 16 of 2016)
In June 2016, an amendment to the Registration of Deaths (Temporary Provisions) Act enabled the Government to issue Certificates of Absence (COA). The COA is valid for two years or if information surfaces about the missing person. If after two years, no information has been found relatives may extend the COA, apply for a Certification of Death or cancel the COA.
In 2016, President Maithripala Sirisena agreed to issue Certificates of Absence to relatives of over 65,000 that went missing during the civil war allowing them to temporarily manage the property and assets of missing people, to obtain provisional guardianship of their children and apply for government welfare schemes.
A total of 20,598 people are incarcerated in the country's 61 institutions with pre-trial detainees and remand prisoners making up 53.47 percent of the total prison population. Many of these prisoners suffer the daily realities of chronic overcrowding with a lack of clean water, sanitation, and basic medical care. The poor management of the prison system greatly adds to the distress of inmates in clear violation of their human rights. The Government Task Force on prison overcrowding, established in September 2016, has yet to have any real impact on the ground with an increasing prison population and an occupancy rate in excess of 190 percent. Whilst some improvements have been made the practice of abuse, torture, and beatings, especially targeting political prisoners continues in direct contravention of international humanitarian law.
- Criminal Code Part 1, Chapter 1, preliminary interpretation
- Criminal Code Chapter V of process to compel appearance, 44. Registries of Summons, 3
- Criminal Code Chapter IV of Arrest, Escape, and Retaking
- Criminal Code, Chapter IV of Arrest, Escape, and Retaking
- Criminal Code, Chapter IV of Arrest, Escape, and Retaking
- Code of Criminal Procedure, Chapter 26, 2
- Code of Criminal Procedure, Chapter 26, 2
- Code of Criminal Procedure, Chapter 26, 264, 2
- Code of Criminal Procedure Chapter 26
- Code of Criminal Procedure, Chapter 26
- Code of Criminal Procedure, Chapter 26
- Peiris G.L. & de Soysa R.S. ‘The Admissibility of Confessions in Criminal Proceedings: A comparative analysis of the law of Sri Lanka and England’ Sri Lanka Journal of Social Sciences 49 available at http://dl.nsf.ac.lk/bitstream/handle/1/5112/JSS%202_1_1.pdf;sequence=1.
- Ibid, 49.
- Ibid, 52.
- Code of Criminal Procedure, Chapter XXIV of Sentences and the Carrying out Thereof, 286, G
- Code of Criminal Procedure, Chapter 26
- Bail Act 1997, Section 25; https://www.lawnet.gov.lk/1947/12/31/bail-2/
- Bail Act 1997, Section 24
- s152(3) and s217 of the Code of Criminal Procedure
- Sri Lanka Code of Criminal Procedure Section 314
- Article - A Critical Analysis on the Application of the Legal Principle of Rule of Law in the Criminal Justice System of Sri Lanka - Volume 4, Issue 3 - 2017
- Code of Criminal Procedure, Chapter 26, Trial to Close of Case for Prosecution and Defence, 217
- Constitution of Sri Lanka, Act. 13, 6
- Constitution of Sri Lanka, Chapter 3 Section 13, 2
- Constitution of Sri Lanka, Chapter 3 Section 11
- CPA Press Release on SC SD 7/2017 [Code of Criminal Procedure (Special Provisions) Act No 2 of 2013, Amendment Bill; http://www.cpalanka.org/press-release-on-sc-sd-72017-code-of-criminal-procedure-special-provisions-act-no-2-of-2013-amendment-bill/
- Constitution of Sri Lanka, The Court of Appeal, 141
- Prisons Ordinance, Chapter 66, Prisons, Part VIII, Health of Prisoners, 66; http://policehumanrightsresources.org/wp-content/uploads/2016/03/Prisons-Act-Sri-Lanka-1877.pdf
- Constitution of Sri Lanka, Chapter III, Fundamental Rights, 13, 3
- United Nations, Human Rights Council - Written Statement’s submitted by the International Movement Against All Forms of Discrimination and Racism (IMADR), a non-governmental organisation in special consultative status; http://imadr.org/wordpress/wp-content/uploads/2013/12/Written-Statement_HRC-22nd-session_Independence-of-Judiciary-in-Sri-Lanka-2013.pdf
- Part VII, Chapter XXVIII of Appeals, A - 320
- Criminal Procedure Act, B - Arrest Without A Warrant, 33
- Criminal Procedure Act, B - Arrest Without A Warrant, 33
- Code of Criminal Procedure, Chapter 26, 217
- Code of Criminal Procedure, Chapter 26, 288
- Code of Criminal Procedure, Chapter 26
- Prison Ordinance, Chapter 66, Part IV, 55 & 62
- Prison Ordinance, Chapter 66, Part IV