Thirteenth Amendment and Administration of Justice

November 21, 2024

Features

Thirteenth Amendment and Administration of Justice

September 03, 2019

The 13th Amendment to the Constitution passed in 1987 by Parliament, introduced various conspicuous changes pertaining to the general administration of the country and in particular introduced the concept of Provincial Councils. As far as the judicial system is concerned one important change brought about by the 13th Amendment is the establishment of a separate High Court for each Province referred to as ‘a High Court of the relevant Province’ (HCP). Even though the said HCP was established in 1988, provisions regarding the procedure to be followed by such HCP was not passed by Parliament until 1990 by way of the High Court of the Provinces (Special Provisions) Act No.19 of 1990.

Article 154P of the 13th Amendment deals with the Provincial High Courts.

In terms of Article 154P(3) (a) every such High Court of the Province shall - exercise according to law, the original criminal jurisdiction of the High Court of Sri Lanka in respect of offences committed within the Province; As provided in Article 154P(3) (b) notwithstanding anything in Article 138 and subject to any law, High Court of the Province shall exercise, appellate and revisionary jurisdiction in respect of convictions, sentences and orders entered or imposed by Magistrates Courts and Primary Courts within the Province. To that extent, the High Court of the Province has now become an appellate court whilst retaining its jurisdiction as a court of the first instance.

The Review of the provisions of the 13th Amendment and the relevant law in relation to the administration of justice in the country reveals the following key points:

In Sri Lanka despite the 13th Amendment, there is a composite Supreme Court and the Judiciary remains firmly rooted in the Centre. The High Court Judges are appointed by the President (Article 111(2)) as before with the difference that they are now nominated to the High Court of each Province by the Chief Justice (Article 154P (2)). The disciplinary control of the Judicial Service Commission remains unaltered as observed by the Supreme Court in regarding the 13th Amendment to the Constitution case, thus Centre continues to be supreme in the judicial area and the Provincial Council has no control over the judiciary functioning in the Province.

The Original Criminal Jurisdiction of the HCP

Article 105 of the Constitution recognized the High Court of the Republic. The original criminal jurisdiction was conferred on the High Court of the Republic under the provisions of the Judicature Act of 1978 and the Code of Criminal Procedure Act of 1979. Article 111 of the Constitution declared that the High Court of the Republic of Sri Lanka would be the highest court of the first instance. However, the 11th Amendment to the Constitution passed on May 6, 1987 stated the said High Court would no longer be considered as a court of the first instance.

The original jurisdiction of a High Court of the Province established under Article 154P of the 13th Amendment to the Constitution was also initially confined to the hearing of criminal matters. (Article 154P (3)(a)). It could only hear criminal trials in the exercise of its criminal jurisdiction until 1996 when the High Court of the Provinces (Special Provisions) Act No.10 of 1996 conferred original civil jurisdiction on the Provincial High Court. Upon an examination of the aforesaid Article 154P (3) (a), it is clear that the Parliament has conferred the original criminal jurisdiction hitherto exercised by the High Court of the Republic to the High Court of the Province established under Article 154P of the Constitution. Section 2 of the Act No.19 of 1990 too appears to support this view.

The Original Civil Jurisdiction of the HCP

In the present structure of the Courts in the country the original civil jurisdiction is currently exercised by the following courts. (a) the High Court of the Western Province under the High Court of the Provinces (Special Provisions ) Act No. 10 of 1996 and (b) the District Court - the jurisdiction of the District Court is found in sections 19 -23 of the Judicature Act of 1978. Under the Judicature Act of 1978, Family Court was also established. However, by Act No.17 of 1981, the jurisdiction of the Family Court was handed over to the District Court. Accordingly District Court in addition, also exercises jurisdiction under section 24 of the Judicature Act of 1978.

The High Court of the Provinces (Special Provisions) Act No.10 of 1996 confers a limited original civil jurisdiction to the High Court of the Province. Accordingly, the High Court of the relevant Province exercises civil jurisdiction in respect of all actions based on commercial transactions where the value as amended does not exceed Rs. 3 million. Under section 2 (3) of the said Act of 1996, exclusive jurisdiction has been conferred on the Provincial High Court of the Western Province to hear and determine all matters listed under the 2nd Schedule of the said Act of 1996. Item 3 of the 1st Schedule to the Act No. 10 of 1996 and item 2 of the 2nd Schedule to the same Act have been amended by the Provisions of section 205 of the Intellectual Property Act No.36 of 2003. Section 5 of the said Act No.10 of 1996 makes provisions relating to appeals from the judgement of the High Court to the Supreme Court. In such appeals, provisions of Chapter 58 of the Civil Procedure Code would apply regulating the procedure. Under the proviso to section 9 (1) of Act No.19 of 1990, if the Provincial High Court refuses to grant leave, the Supreme Court is vested with the power to grant leave to appeal at their discretion, where the Supreme Court is of the opinion that the matter is fit for review by them.

Agrarian Services Act No. 58 of 1979 was amended and made provision for appeals from orders made by the Assistant Commissioner of Agrarian Services to the Court of Appeal in respect of disputes relating to eviction and succession. With the Thirteenth Amendment and also having regard to section 3 and 4 of the High Court of the Provinces (Special Provisions) Act, No.19 of 1990, it is evident that a right of appeal and even revision had been provided to the Provincial High Court from orders made under section 5 and section 9 of the Agrarian Services Act, in respect of any land situated within the Province. However, the operation of sections 3 and 4 of the High Court of the Provinces (Special Provisions) Act was limited by the Agrarian Services (Amendment) Act, No. 4 of 1991 which had repealed section 5(6). It provided for an inquiry in the case of an eviction and thereafter an aggrieved person was able to appeal to the Board of Review. The decision of the Board of Review was final and conclusive. However, the Amendment did not affect appeals being made against orders made by the Assistant Commissioner of Agrarian Services relating to succession to the Provincial High Court or to the Court of Appeal.

Subsequently, the Agrarian Services Act No. 58 of 1979 was repealed by the Agrarian Development Act, No.46 of 2000. It provided for matters relating to Landlord and Tenant Cultivators of Paddy lands for the utilization of agricultural lands in accordance with agricultural policies, for the establishment of Agrarian Development Councils and Agrarian Tribunals etc. Under the Agrarian Development Act it was provided that when a tenant cultivator notifies the Commissioner General in writing that he has been evicted, the Commissioner General shall refer the matter to the Agrarian Tribunal for inquiry. Thereafter, the party aggrieved by the decision of the Agrarian Tribunal could within 30 days appeal to the Court of Appeal against the decision on a question of law. Where there is no appeal against the decision within the time allowed, in terms section 7 of the Agrarian Development Act, such decision shall be final and conclusive.

Civil Appellate Jurisdiction of the HCP

Parliament introduced an Amendment to the High Court of Provinces (Special Provisions) Act No.19 of 1990 by passing Act No.54 of 2006. In terms section 5A of the said Act of 2006, High Court established by Article 154P of the Constitution shall have and exercise appellate and revisionary jurisdiction in respect of judgements, decrees and orders made by any District Court or Family Court within such Province and the appellate jurisdiction for the correction of all errors in fact and in law committed by such District Court or Family Court. In terms of section 5C of the High Court of the Provinces (Amendment) Act No.54 of 2006 an appeal shall lie directly to the Supreme Court from any judgement, decree or order entered by a Provincial High Court in the exercise of its jurisdiction under section 5A of this Act, with leave granted by the Supreme Court wherein its opinion the matter involves a substantial question of law or is a matter fit for review by such Court.

Litigants’ Rights of Appeal and Revision

A person aggrieved by an order of an original Court may challenge the order before a higher tribunal on the following basis: (a) by way of an appeal and (b) by way of an application for revision. A right of appeal is a statutory right and must be expressly created and granted by statute. Therefore, if a litigant is unable to show that such a right has been statutorily and expressly provided for, then he would not be in a position to satisfy the court that he has the right of appeal. The mere fact that the particular court can hear appeals does not mean that there is an automatic right of appeal to such court unless such a right is statutorily provided for in expressed terms. Moreover, such an appeal could be made only against final judgement or order; by extension, it includes any order which will have an effect of the final disposal of an action. No appeal can be made against the judgement or decree entered of consent. In the case of an appeal, the appellate court - Court of Appeal or Provincial High Court - would be concerned about the legality of the order and the reasonableness of it. In an application, by way of revision, the Court will only be concerned of the legality. In an application for revision, the court will not be interested in the merits of the case whereas its focus would be only the legality and the propriety of the order.

In the early years, the judicial thinking was that if the right of appeal has been available to a party, and where such party has failed to exercise such right of appeal, an application for revision should not be entertained. But the current legal position is that an application for revision can be considered by an appellate court even in an instance where the petitioner had the opportunity of exercising a right of appeal. (Siripala v Lanerolle and Another) However, in such an instance the Court would insist upon rigid considerations.

There are many situations in which the High Court of the Province and the Court of Appeal can exercise concurrent jurisdiction in respect of the same matter. Then, there is a possibility that a litigant may file an appeal or any other application in the High Court as well as in the Court of Appeal. In such situations, the conflict has to be resolved by the application of section 12 of the High Court of the Provinces (Special Provisions) Act of 1990. With regard to the procedure to be followed for appeals and other applications, it is to be noted that sections 4, 5 and 7 of the High Court of the Provinces (Special Provisions) Act have provided that the procedure made applicable to the Court of Appeal would apply.

Appeals from the High Court of the Province

Under section 9 (b) of Act No.19 of 1990, every appeal in respect of a decision made by the Provincial High Court in the exercise of its powers under Article 154P (3) (a) or (4) shall be made to the Court of Appeal. Therefore a person who is dissatisfied with an order of a Provincial High Court in the exercise of its original criminal jurisdiction or the writ jurisdiction may appeal against the said order to the Court of Appeal. The provisions of the law pertaining to an appeal to the Court of Appeal from the Provincial High Court are found under section 11 of Act No.19 of 1990. The revisionary jurisdiction in respect of an order made by a Provincial High Court in the exercise of its powers under Act No.19 of 1990 or under Act No.10 of 1996 may be exercised by the Court of Appeal in terms of Article 138 of the Constitution.

In terms of section 31DD which was inserted to the Principal enactment through section 5 of the Industrial Disputes (Amendment) Act No.32 of 1990, any party who is aggrieved by a decision of the Provincial High Court in the exercise of its appellate or revisionary jurisdiction may tender an appeal from that order to the Supreme Court after obtaining leave from the Provincial High Court.

In terms of Article 1545(P) of the Constitution, Provincial High Court has been conferred authority to issue writs in the nature of habeas corpus certiorari, prohibition, procedendo, mandamus and quo warranto. However such power is exercised by the Provincial High Court against any person exercising within the Province any power under any law or any statute made by the Provincial Council in respect of any matter set out in the Provincial Council List.