The law in Sri Lanka is based on the English Common Law. This article looks at how the legal system can be improved to reduce the rising crime wave and create a safe and sound society of the individuals to live in

1. How Can the Legal System of Sri Lanka be Improved?

2. Introduction
The best way to get bad law repealed is to enforce it strictly – Abraham Lincoln
As per http://www.srilankalaw.lk/ our legal framework is defined the following way.
“The legal framework of Sri Lanka is complex and a mixture of laws ranging from Rome,
England, Holland, South India and Old Ceylon. The religious and colonial history of the
nation, traced from 1505 to 1948, is the factor responsible for this rich legislative
inheritance”
How Can the Legal System of Sri Lanka be Improved?
Abolish the 18th Amendment and Reintroduce the 17th Amendment
The 17th
amendment was introduced in October 2001. This amendment introduced
limitations on the exercise of executive power. It also stipulated the establishment if the
Constitutional Council (CC) that range of public institutions including the judiciary can be
depoliticized. The council limited the powers of the President to make appointments to the
higher judiciary and independent commissions.
The independent commissions were set up to oversee areas such as public services, police,
judicial services, election, human rights, bribery & corruption etc. the members for these
commissions were to be selected by the 10 member Constitutional Council. The intention
was to ensure good governance from political interference.
The powers of the Constitutional Council (CC) are given below:
1) Article 41B allowed it to recommend names of members for appointments to the
key commissions who were then appointed by the president. The commissions are
as follows:
- Election Commission
- The Public Service Commission
- The National Police Commission
- The Human Rights Commission of Sri Lanka
- The Permanent Commission to Investigate Allegation of Bribery and Corruption
- Delimitation Commission
2) No person should be appointed to the above commissions without the
recommendation of the CC
Although the 17th
Amendment was expected have lifelong validity, when the terms of
office of the members in CC expired, the council died a natural death in 2005. Politicians
had their own agendas and made no effort to agree upon who should be appointed to the
council outside of parliament. The dilemma of which group in parliament was entitled to
nominate the 10th
member would have been referred to the Supreme Court. However,
political leaders used it as an excuse to eliminate the CC.

3. Non implementing the 17th
Amendment resulted in the following:
1) It invalidating the National Police Commission by bringing the police department under
the Ministry of Law and Order which was previously under the control of Secretary of
Defense
2) Made the Human Rights Commission ineffective.
Implications of the 18th
Amendment
1) The 18th
Amendment effectively annulled the 17th
amendment and was passed by a
referendum in 1st
September 2010. This removed the power of the constitutional council
to nominate people for the following positions
- Chief Justice and the judges of the Supreme Court
- President and Judges of Court of Appeal
- Members of the Judicial Commissions other than the Chairman
- Attorney General
- Auditor General
- Inspector General of Police
- Parliamentary Commissioner for Administration
- Secretary General of Parliament
2) It removed the limitation on the power which was imposed on the president to make
direct appointments to the judiciary and independent commissions.
3) Removing the two term restriction to the 1978 constitution
4) Vesting the president with powers to make appointments to the following commissions
- Election Commission
- The Public Service Commission
- The National Police Commission
- The Human Rights Commission of Sri Lanka
- The Permanent Commission to Investigate Allegation of Bribery and Corruption
- Delimitation Commission
The 18th
Amendment also expanded the powers of the president to appoint the following
persons:
- Chief Justice and the judges of the Supreme Court
- President and Judges of Court of Appeal
- Members of the Judicial Commissions other than the Chairman
- Attorney General
- Auditor General
- Inspector General of Police
- Parliamentary Commissioner for Administration
- Secretary General of Parliament

4. Take Necessary Steps to Combat Law Delays
According to the Ministry of Justice website (http://www.justiceministry.gov.lk/), as at 22nd
November, 2010 there are 650,000 cases pending before our courts.
The Ministry of Justice has stated that they were will set up 60 new Courts and temporary
courts with retired judges will be set up for a period of two years to reduce and if possible
eradicate the backlog of cases. There is sincere hope that this project is ongoing and will/was
not abandoned.
Time Taken to Sort Court Cases
Nassir Shaikh, the brother of slain Khuram Shaikh who was killed in Tangalle in December
2011 had mentioned the following important point in an interview with a journalist of News 1st
.
(http://newsfirst.lk/english/2014/07/tangalle-rape-murder-update/45246)
News 1st: For someone who has Britain as his home, how difficult has it been to comprehend
the length of time it has taken to bring this matter to trial?
As British born siblings we have always known that democratic states have a system allowing
the most serious of cases to be completed in a timely manner. A perfect example is the case of
the Salford overseas student who was shot and killed in Manchester on Boxing Day 2011. An
individual was identified soon after and a full investigation and trial was completed in six
months with murder charges brought against the accused. The case last year in India where
the gang rape on the bus took place is another example – convictions were brought within
six months. Whilst these are very encouraging examples, our wait has been of a prolonged
period but I warmly welcome that a trial date had finally been set and thank those involved
in making this happen.
Although the murder occurred in December 2011, the trial was heard only in July 2014. The
question remains why so? It’s the people’s belief that it is due to the defendants’ political
affiliations.
Out of four of the six defendants, including the chairman of the Tangalle Pradeshiya Sabha
Sampath Vidanapathirana, were sentenced to 20 years of rigorous imprisonment for the murder
of Khuram Shaikh. The fifth and sixth defendants meanwhile have been acquitted. Why did
presiding judge hand down such a lenient sentence? Was he politically intimidated? There is a
very high probability that this sentence was handed down to please the victim’s family as the
defendants’ will use their political power to influence law makers for additional leniency.
Priyani Soyza Vs Rienzie Arsekularatne is another landmark case which lasted for almost a
decade where the plaintiff Rienzie Arsekularatne accused defendant Priyani Soyza for medical
neglicance.
The lawyers are notoriously famous for delaying cases. This should be minimized at all costs as
it is a contributing factor for backlog of cases.

5. Remove the Urgent Bill Provision
Since the government has two-third majorities in the parliament, they have the power to
introduce and pass any law they please. The Supreme Court then reviews the proposed
legislation only for three weeks from the date of reference. This denies the citizens ability to
participate in the law making process. This protection is not applicable when passing an urgent
bill and most legislation has been passed as urgent bills. The urgent bill provision must be
removed for transparency and good governance.
Establish the Right of the Judicial Review
The constitution in Sri Lanka does not allow a law to be question after it has been enacted.
Right of judicial review must be established where legislative or executive actions are subject
to review/invalidation by the judiciary.
Reintroduce the Presidential Term Limits
The 18th Amendment removed the two term restriction on the presidency with six year tenure
for each term. The US president can serve only two terms with 4 year tenure for each term.
Term limits can restrain potential domination of a candidate. Not having presidential term
limits in place can lead to a myriad of problems such as dictatorship, corruption, abuse power
etc. Without a presidential term limit, there is a possibility that Sri Lanka will become another
Egypt or Libya. The following presidents served for over 25 years in their respective countries
until they were ousted from power.
E.g:
1) Hosni Mubarak who served as President in Egypt from 14 October 1981 – 11 February
2011
2) Colnel Gaddafi served as President in Libya form 1 September 1969 – 23 August 2011
Having presidential term limits have the following advantages:
1) Serves as a limit on the concentration of executive power
2) Provides aspiring leaders a chance to run for office which allows party based
democracy instead of personality based democracy
3) Removes the monopoly among an individual/group of individual.
4) Encourages the cultivation of successors.
Remove Immunity of President
The immunity of the head of state should be removed as this contradicts the commonly used
statement “No man is above the law”. The constitution states that the president cannot be tried
in courts while in office. The congress in the US has the right to question the President. This is
a mechanism which should be introduced in Sri Lanka as well where the head of state should at
least be questioned by the parliament.

6. References:
 Nanayakkara, V.K (2012) In Search of a New Sri Lankan Constitution. A Stamford Lake
Publication. P204-271
 http://www.srilankalaw.lk/
 http://www.neelakandan.lk/Compendium%20of%20Law/Legal_Systems_in_Sri%20Lan
ka.php
 http://www.justiceministry.gov.lk/
 https://www.google.lk/?gws_rd=cr,ssl&ei=nf__U4i9Ns-
3uASTrIKoDA#q=legal%20system%20in%20sri%20lanka%20ppt