Legal Systems of Sri Legal Systems of Sri LankaLanka

Mahesh Mahesh Abeynayake Abeynayake LL.B (Hons) ,LL.M (Colombo),M.PhilLL.B (Hons) ,LL.M (Colombo),M.Phil

Attorney-at-Law, LecturerAttorney-at-Law, Lecturer

Syllabus OutlineSyllabus OutlineThe Nature of Law & its role in The Nature of Law & its role in societysocietyRole of Judicial Precedent & Role of Judicial Precedent & Statutory InterpretationStatutory InterpretationSources of Law, the Courts of Sources of Law, the Courts of Law & the Role of the CommunityLaw & the Role of the CommunityHuman Rights LawHuman Rights Law

Learning OutcomesLearning OutcomesDemonstrate knowledge and Demonstrate knowledge and understanding of statutes as a understanding of statutes as a source of law, and the significance source of law, and the significance of primary and secondary of primary and secondary legislation with particular legislation with particular reference to the IT sectorreference to the IT sectorDemonstrate an understanding of the Demonstrate an understanding of the operation of precedent in the operation of precedent in the courts.courts.

Learning Outcomes…Learning Outcomes…Explain the different approaches Explain the different approaches to statutory interpretation and to statutory interpretation and a knowledge of internal and a knowledge of internal and external aids to judicial external aids to judicial interpretation.interpretation.Apply appropriate contractual Apply appropriate contractual principles to a range of problem principles to a range of problem scenarios and provide articulate scenarios and provide articulate and logical solutions.and logical solutions.

Legal SystemsLegal SystemsThe Nature The Nature of Law & its of Law & its Role in Role in SocietySociety

Comparison of Criminal and Civil Comparison of Criminal and Civil LawLaw

(a)(a) Purpose Purpose CriminalCriminal- punishment of the wrongdoer- punishment of the wrongdoerCivilCivil-- compensation of the victim compensation of the victim((b) b) Case brought byCase brought by CriminalCriminal- the state- the stateCivilCivil - the victim- the victim(c) (c) Action Action CriminalCriminal-- prosecution prosecutionCivilCivil--suingsuing–

Comparison of Criminal and Comparison of Criminal and Civil Civil LawLaw

d) d) Burden of proofBurden of proof CriminalCriminal- beyond reasonable doubt- beyond reasonable doubtCivilCivil-- on a balance of probabilities on a balance of probabilities(e) (e) CourtCourt CriminalCriminal- - Magistrate’s Court, High CourtMagistrate’s Court, High CourtCivilCivil-- District Court, Commercial High District Court, Commercial High CourtCourt(f) (f) Outcome if defendant losesOutcome if defendant loses Criminal Criminal -- imprisonment, fine, community imprisonment, fine, community service, probationservice, probationCivilCivil-- damages, specific performance, damages, specific performance, injunctioninjunction

Legal Systems of Sri Legal Systems of Sri LankaLanka

Roman Dutch Law (Common law in Roman Dutch Law (Common law in Sri LankaSri LankaEnglish LawEnglish LawKandyan Law (Special personal Kandyan Law (Special personal Law)Law)Thesawalamei Law (Special Thesawalamei Law (Special personal Law)personal Law)Muslim Law (Special personal Law)Muslim Law (Special personal Law)

Legal Systems of UKLegal Systems of UK

English Law / English English Law / English Common LawCommon LawHowever Law there is a sub However Law there is a sub international Regional Law, it is international Regional Law, it is called,called,

European Union LawEuropean Union Law

Sources of Law in Sri Sources of Law in Sri Lanka Lanka

Legislation Legislation Judicial Precedents (Judges -Made Judicial Precedents (Judges -Made Law or Case Law)Law or Case Law)EquityEquityCustoms Customs Public International Law Public International Law Religion (Canon Law)Religion (Canon Law)Opinions of the Jurists / writersOpinions of the Jurists / writers

Legislation /Enacted Legislation /Enacted Law/Statute LawLaw/Statute Law

What is a legislature ?What is a legislature ?

Acts and OrdinancesActs and Ordinances““Delegated Delegated legislation”/“Subordinate” legislation”/“Subordinate” legislationlegislation Rules , By-laws, Regulations , Rules , By-laws, Regulations , Orders, Directives etcOrders, Directives etc

LegislationLegislation

Companies Act No 07 of Companies Act No 07 of 20072007Sale of Goods Sale of Goods Ordinance of 1896Ordinance of 1896Unfair Contract Terms Unfair Contract Terms Act of 1997Act of 1997

Case LawCase LawJudges can interpret and Judges can interpret and explain legislation if the explain legislation if the statutory provision is not very statutory provision is not very clear but if there is clear clear but if there is clear legislative provision covering legislative provision covering the issue he cannot ignore the the issue he cannot ignore the legislation and decide the case legislation and decide the case according to his own views as according to his own views as to what the law should be.to what the law should be.

Equity Equity In ordinary language “In ordinary language “equityequity” ” means natural justice. means natural justice. Equity is law in the sense that Equity is law in the sense that it is part of the law of the it is part of the law of the England.England.Equity was developed as a source Equity was developed as a source of Law as distinct from the of Law as distinct from the common law in ecclesiastical common law in ecclesiastical courts in England.courts in England.

Equity Equity The concept of equity in considered to The concept of equity in considered to be universal in application. be universal in application. There are 2 manifestations of equity. There are 2 manifestations of equity. They are as follows. They are as follows. Equity is viewed as the just and Equity is viewed as the just and reasonable interpretation of the Law.reasonable interpretation of the Law.Where there are gaps in a legal Where there are gaps in a legal system, equity may be used to fill system, equity may be used to fill such gaps.such gaps.There are several maxims in law of There are several maxims in law of equity. equity.

Equity Equity They are 2 maxims as They are 2 maxims as follows. . follows. . Equity follows the law.Equity follows the law.Those who come to courts must Those who come to courts must come with clean handscome with clean hands.- That .- That means they must not be wrong-means they must not be wrong-doers or must not violate the doers or must not violate the law.law.

EquityEquityThe concept of equity is The concept of equity is different from other sources different from other sources of law in that it is not of law in that it is not possible to set out specially possible to set out specially the rules of equity. the rules of equity. In fact it is an abstract In fact it is an abstract concept of principle behind concept of principle behind the law.the law.

Legal CustomsLegal CustomsCustom is also regarded as a Custom is also regarded as a source of law. source of law. However, for courts to recognize However, for courts to recognize a custom it must be:-a custom it must be:-

– Ancient and well-establishedAncient and well-established– ReasonableReasonable– CertainCertain– It must have been uniformly used.It must have been uniformly used.

CustomsCustomsIn all societies the custom is In all societies the custom is in operation. The courts have in operation. The courts have the authority to recognize and the authority to recognize and enforce certain custom as legal enforce certain custom as legal customs.customs. Legal customs are binding and Legal customs are binding and their sanctions are their sanctions are comparatively complete and comparatively complete and uniform.uniform.

Customs Customs A good illustration of a A good illustration of a customs that has been customs that has been recognized by our courts, is recognized by our courts, is the right of any member of the right of any member of the public to fish in the the public to fish in the open sea. open sea. Hence every citizen can Hence every citizen can catch fish in the sea. catch fish in the sea.

Opinions of WritersOpinions of Writers

Opinions of writers or the Opinions of writers or the tradition of textual precedent tradition of textual precedent as a source of law have a as a source of law have a limited application compared to limited application compared to the the Doctrine of Judicial Doctrine of Judicial precedentprecedent. In fact is a very . In fact is a very important source of Roman Dutch important source of Roman Dutch law and the systems of law law and the systems of law derived from it. derived from it.

Opinions of WritersOpinions of Writers

Accordingly, the opinions of Accordingly, the opinions of writers on the English Law are writers on the English Law are considered to be authoritative. considered to be authoritative. The English Law developed not The English Law developed not so much through interpretation so much through interpretation by courts but through the by courts but through the opinions of learned jurists. opinions of learned jurists.

Opinions of WritersOpinions of Writers

Among the jurists who are most Among the jurists who are most frequently, cited in the English frequently, cited in the English Courts are “Courts are “Vade”Vade” “ Cheshire & “ Cheshire & Fifoot” “ AnsonFifoot” “ Anson” and Lautapact” and Lautapact..The opinions of eminent authors The opinions of eminent authors or writers of Sri Lanka are also or writers of Sri Lanka are also cited as authorities such cited as authorities such as as Cheshire & Fifoot for Contract Cheshire & Fifoot for Contract Law etc. Law etc.

Public Public International LawInternational LawConventions Conventions CovenantsCovenantsProtocols Protocols Agreements Agreements