Constitution of Sri Lanka/Chapter XVI

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Constitution of Sri Lanka
The Government of Sri Lanka
Chapter XVI
The Superior Courts
Chapter:

I, II, III, IV, V, VI, VII, VIII, IX, X, XI, XII, XIII, XIV, XV, XVI, XVII, XVIIA, XVIII, XIX, XX, XXI, XXII, XXIII, XXIV

Schedule:

1st, 2nd, 3rd, 4th, 5th, 6th, 7th, 8th, 9th

Amendment:

1st, 2nd, 3rd, 4th, 5th, 6th, 7th, 8th, 9th, 10th, 11th, 12th, 13th, 14th, 15th, 16th, 17th, 18th

The Supreme Court

General jurisdiction of Supreme Court.

118. The Supreme Court of the Republic of Sri Lanka shall be the highest and final superior Court of record in the Republic and shall subject to the provisions of the Constitution exercise –

(a) jurisdiction in respect of constitutional matters;

(b) jurisdiction for the protection of fundamental rights;

(c) final appellate jurisdiction;

(d) consultative jurisdiction;

(e) jurisdiction in election petitions;

(f) jurisdiction in respect of any breach of the privileges of Parliament; and

(g) jurisdiction in respect of such other matters which Parliament may by law vest or ordain.


Constitution of Supreme Court. 119. (1) The Supreme Court shall consist of the Chief Justice and of not less than six and not more than ten other Judges who shall be appointed as provided in Article 107.

(2) The Supreme Court shall have power to act notwithstanding any vacancy in its membership, and no act or proceeding of the Court shall be, or shall be deemed to be, invalid by reason only of any such vacancy or any defect in the appointment of a Judge.


Constitutional jurisdiction of the Supreme Court.

120. The Supreme Court shall have sole and exclusive jurisdiction to determine any question as to whether any Bill or any provision thereof is inconsistent with the Constitution:

Provided that-

(a) in the case of a Bill described in its long title as being for the amendment of any provision of the Constitution, or for the repeal and replacement of the Constitution, the only question which the Supreme Court may determine is whether such Bill requires approval by the People at a Referendum by virtue of the provisions of Article 83;

(b) where the Cabinet of Ministers certifies that a Bill which is described in its long title as being for the amendment of any provisions of the Constitution, or for the repeal and replacement of the Constitution, intended to be passed with the special majority required by Article 83 and submitted to the People by Referendum, the Supreme Court shall have and exercise no jurisdiction in respect of such Bill ;

(c) where the Cabinet of Ministers certifies that any provision of any Bill which is not described in its long title as being for the amendment of any provision of the Constitution, or for the repeal and replacement of the Constitution is intended to be passed with the special majority required by Article 84, the only question which the Supreme Court may determine is whether such Bill requires approval by the People at a Referendum by virtue of the provisions of Article 83 or whether such Bill is required to comply with paragraphs (1) and (2) Of Article 82; or

(d) where the Cabinet of Ministers certifies that any provision of any Bill which is not described in its long title as being for the amendment of any provision of the Constitution or for the repeal and replacement of the Constitution is intended to be passed with the special majority required by Article 84, the only question which the Supreme Court may determine is whether any other provision of such Bill requires to be passed with the special majority required by Article 84 or whether any provision of such Bill requires the approval by the People at a Referendum by virtue of the provisions of Article 83 or whether such Bill is required to comply with the provisions of paragraphs (1) and (2) of Article 82.


Ordinary exercise of constitutional jurisdiction in respect of Bills.

121. (1) The jurisdiction of the Supreme Court to ordinarily determine any such question as aforesaid may be invoked by the President by a written reference addressed to the Chief Justice, or by any citizen by a petition in writing addressed to the Supreme Court. Such reference shall be made, or such petition shall be filed, within one week of the Bill being placed on the Order Paper of the Parliament, and a copy thereof shall at the same time be delivered to the Speaker. In this paragraph "citizen " includes a body, whether incorporated or unincorporated, if not less than three-fourths of the members of such body are citizens.

(2) Where the jurisdiction of the Supreme Court has been so invoked no proceedings shall be had in Parliament in relation to such Bill until the determination of the Supreme Court has been made, or the expiration of a period of three weeks from the date of such reference or petition, whichever occurs first.

(3) The Supreme Court shall make and communicate its determination to the President and to the Speaker within three weeks of the making of the reference or the filing of the petition, as the case may be.


Special exercise of constitutional jurisdiction in respect of urgent Bills. 122. (1) In the case of a Bill which is, in the view of the Cabinet of Ministers, urgent in the national interest, and bears an endorsement to that effect under the hand of the Secretary to the Cabinet –

(a) the provisions of Article 78 (1) and of Article 121, shall subject to the provisions of paragraph (2) of this Article, have no application;

(b) the President shall by a written reference addressed to the Chief Justice, require the special determination of the Supreme Court as to whether the Bill or any provision thereof is inconsistent with the Constitution. A copy of such reference shall at the same time be delivered to the Speaker;

(c) the Supreme Court shall make its determination within twenty-four hours (or such longer period not exceeding three days as the President may specify) of the assembling of the Court, and shall communicate its determination only to the President and the Speaker.

(2) The provisions of paragraph (2) of Article 121 shall, mutatis mutandis, apply to such Bill.


Determination of Supreme Court in respect of Bills. 123. (1) The determination of the Supreme Court shall be accompanied by the reasons therefor, and shall state whether the Bill or any provision thereof is inconsistent with the Constitution and if so, which provision or provisions of the Constitution.

(2) Where the Supreme Court determined that the Bill or any provision thereof is inconsistent with the Constitution, it shall also state-

(a) whether such Bill is required to comply with the Provisions Of paragraphs (1) and (2) of Article 82; or

(b) whether such Bill or any provision thereof may only be passed by the special majority required under the provisions of paragraph (2) of Article 84; or

(c) whether such Bill or any provision thereof requires to be passed by the special majority required under the provisions of paragraph (2) of Article 84 and approved by the People at a Referendum by virtue of the provisions of Article 83,

and may specify the nature of the amendments which would make the Bill or such provision cease to be inconsistent.

(3) In the case of a Bill endorsed as provided in Article 122, if the Supreme Court entertains a doubt whether the Bill or any provision thereof is inconsistent with the Constitution, it shall be deemed to have been determined that the Bill or such provision of the Bill is inconsistent with the Constitution, and the Supreme Court shall comply with the provisions of paragraphs (1) and (2) of this Article.

(4) Where any Bill, or the provision of any Bill, has been determined, or is deemed to have been determined to be inconsistent with the Constitution, such Bill or such provision shall not be passed except in the manner stated in the determination of the Supreme Court:

Provided that it shall be lawful for such Bill to be passed after, such amendment as would make the Bill cease to be inconsistent with the Constitution.


Validity of Bills and legislative process not to be questioned. 124. Save as otherwise provided in Articles 120, 121 and 122, no court or tribunal created and established for the administration of justice, or other institution, person or body of persons shall in relation to any Bill, have power or jurisdiction to inquire into, or pronounce upon, the constitutionality of such Bill or its due compliance with the legislative process, on any ground whatsoever.

Constitutional jurisdiction in the interpretation of the Constitution. 125. (1) The Supreme Court shall have sole and exclusive jurisdiction to hear and determine any question relating to the interpretation of the Constitution, and accordingly, whenever any such question arises in the course of any proceeding in any other court or tribunal or other institution empowered by law to administer justice or to exercise judicial or quasi-judicial functions, such question shall forthwith be referred to the Supreme Court for determination. The Supreme Court may direct that further proceedings be stayed pending the determination of such question.

(2) The Supreme Court shall determine such question within two months of the date of reference and make any such consequential order as the circumstances of the case may require.


Fundamental rights jurisdiction and its exercise. 126. (1) The Supreme Court shall have sole and exclusive jurisdiction to hear and determine any question relating to the infringement or imminent infringement by executive or administrative action of any fundamental right or language right declared and recognized by Chapter III or Chapter IV.

(2) Where any person alleges that any such fundamental right or language right relating to such person has been infringed or is about to be infringed by executive or administrative action, he may himself or by an attorney-at-law on his behalf, within one month thereof, in accordance with such rules of court as may be in force, apply to the Supreme Court by way of petition in writing addressed to such Court praying for relief or redress in respect of such infringement. Such application may be proceeded with only with leave to proceed first had and obtained from the Supreme Court, which leave may be granted or refused, as the case may be, by not less than two Judges.

(3) Where in the course of hearing in the Court of Appeal into an application for orders in the nature of a writ of habeas corpus, certiorari, prohibition, procedendo, mandamus or quo warranto, it appears to such Court that there is prima facie evidence of an infringement or imminent infringement of the provisions of Chapter III or Chapter IV by a party to such application, such Court shall forthwith refer such matter for determination by the Supreme Court.

(4) The Supreme Court shall have power to grant such relief or make such directions as it may deem just and equitable in the circumstance in respect of any petition or reference referred to in paragraphs (2) and (3) of this Article or refer the matter back to the Court of Appeal if in its opinion there is no infringement of a fundament right or language right.

(5) The Supreme Court shall hear and finally dispose of any petition or reference under this Article within two months of the filing of such petition or the making of such reference.


Appellate Jurisdiction. 127. (1) The Supreme Court shall, subject to the Constitution, be the final Court of civil and criminal appellate jurisdiction for and within the Republic of Sri Lanka for the correction of all errors in fact or in law which shall be committed by the Court of Appeal or any Court of First Instance, tribunal or other institution and the judgments and orders of the Supreme Court shall in all cases be final and conclusive in all such matters.

(2) The Supreme Court shall, in the exercise of its jurisdiction, have sole and exclusive cognizance by way of appeal from any order, judgment, decree, or sentence made by the Court of Appeal, where any appeal lies in law to the Supreme Court and it may affirm, reverse or vary any such order, judgment, decree or sentence of the Court of Appeal and may issue such directions to any Court of First Instance or order a new trial or further hearing in any proceedings as the justice of the case may require, and may also call for and admit fresh or additional evidence if the interests of justice so demands and may in such event, direct that such evidence be recorded by the Court of Appeal or any Court of First Instance.


Right of appeal.

128. (1) An appeal shall lie to the Supreme Court from any final order, Judgment, decree or sentence of the Court of Appeal in any matter or proceedings, whether civil or criminal, which involves a substantial question of law, if the Court of Appeal grants leave to appeal to the Supreme Court ex mero motu or, at the instance of any aggrieved party to such matter or proceedings;

(2) The Supreme Court may, in its discretion, grant special leave to appeal to the Supreme Court from any final or interlocutory order, judgment, decree, or sentence made by the Court of Appeal in any matter or proceedings, whether civil or criminal, where the Court of Appeal has refused to grant leave to appeal to the Supreme Court, or where in the opinion of the Supreme Court, the case or matter is fit for, review by the Supreme Court :

Provided that the Supreme Court shall grant leave to appeal in every matter or proceedings in which it is satisfied that the question to be decided is of public or general importance.

(3) Any appeal from an order or judgment of the Court of Appeal, made or given in the exercise of its Jurisdiction under Article 139, 140, 141, 142 or 143 to which the President, a Minister, a Deputy Minister or a public officer in his official capacity is a party, shall be heard and determined within two months of the date of filing thereof.

(4) An appeal shall lie directly to the Supreme Court on any matter and in the manner specifically provided for by any other law passed by Parliament.


Consultative jurisdiction. 129. (1) If at any time it appears to the President of the Republic that a question of law or fact has arisen or is likely to arise which is of such nature and of such public importance that it is expedient to obtain the opinion of the Supreme Court upon it, he may refer that question to that Court for consideration and the Court may, after such hearing as it thinks fit, within the period specified in such reference or within such time as may be extended by the President, report to the President its opinion thereon.

(2) Where the Speaker refers to the Supreme Court for inquiry and report all or any of the allegation or allegations, as the case may be, contained in any such resolution as is referred in Article 38 (2) (a), the Supreme Court shall in accordance with Article 38 (2) (d) inquire into such allegation or allegations and shall report its determination to the Speaker within two months of the date of reference.

(3) Such opinion, determination and report shall be expressed after consideration by at least five Judges of the Supreme Court, of whom, unless he otherwise directs, the Chief Justice shall be one.

(4) Every proceeding under paragraph (1) of this Article shall be held in private unless the Court for special reasons otherwise directs.

Jurisdiction in 38[election and referendum petitions.] 130. The Supreme Court shall have the power to hear and determine and make such orders as provided for by law on –

(a) any legal proceeding relating to 39[election of the President or the validity of a referendum].

(b) any appeal from an order or judgment of the Court of Appeal in an election petition case :

Provided that the hearing and determination of a proceeding relating to the 40[ election of the President or the validity of a referendum shall be] by at least five Judges of the Supreme Court of whom, unless he otherwise directs, the Chief Justice shall be one.

Jurisdiction in respect of the breaches of Parliamentary privileges. 131. The Supreme Court shall have according to law the power to take cognizance of and punish any person for the breach of the privileges of Parliament.

Sitting of the Supreme Court. 132. (1) The several jurisdictions of the Supreme Court shall be ordinarily exercised at Colombo unless the Chief Justice otherwise directs.

(2) The jurisdiction of the Supreme Court may be exercised in different matters at the same time by the several Judges of that Court sitting apart :

Provided that its jurisdiction shall, subject to the provisions of the Constitution, be ordinarily exercised at all times by not less than three Judges of the Court sitting together as the Supreme Court.

(3) The Chief Justice may-

(i) of his own motion ; or

(ii) at the request of two or more Judges hearing any matter; or

(iii) on the application of a party to any appeal, proceeding or matter if the question involved is in the opinion of the Chief Justice one of general and public importance,

direct that such appeal, proceeding or matter be heard by a Bench comprising five or more Judges of the Supreme Court.

(4) The judgment of the Supreme Court shall, when it is not an unanimous decision, be the decision of the majority.


Appointment of ad hoc Judges.

133. (1) If at any time there should not be a quorum of the Judges of the Supreme Court available to hold or continue any sittings of the Court, the Chief Justice may with the previous consent of the President request in writing the attendance at the sittings of the Court as an ad hoc Judge, for such period as may be necessary, of the President of the Court of Appeal or any Judge of the Court of Appeal.

(2) It shall be the duty of such a Judge who had been so requested, in priority to other duties of his office, to attend the sittings of the Supreme Court at the time and for the period for which his attendance is required, and while so attending he shall have all the jurisdictions, powers and privileges, and shall perform the duties, of a Judge of the Supreme Court:


Right to be heard by the Supreme Court.

134. (1) The Attorney-General shall be noticed and have the right to be heard in all proceedings in the Supreme Court in the exercise of its jurisdiction under Articles 120, 121, 122, 125, 126, 129 (1) and 131.

(2) Any party to any proceedings in the Supreme Court in the exercise of its jurisdiction shall have the right to be heard in such proceedings either in person or by representation by an attorney-at-law.

(3) The Supreme Court may in its discretion grant to any other person or his legal representative such hearing as may appear to the Court to be necessary in the exercise of its jurisdiction under this Chapter.


Registry of the Supreme Court and office of Registrar. 135. The Registry of the Supreme Court shall be in charge of an officer designated the Registrar of the Supreme Court who shall be subject to the supervision, direction and control of the Chief Justice.


Rules of the Supreme Court. 136. (1) Subject to the provisions of the Constitution and of any law the Chief Justice with any three Judges of the Supreme Court nominated by him, may, from time to time, make rules regulating generally the practice and procedure of the Court including -

(a) rules as to the procedure for hearing appeals and other matters pertaining to appeals including the terms under which appeals to the Supreme Court and the Court of Appeal are to be entertained and provision for the dismissal of such appeals for non-compliance with such rules ;

(b) rules as to the proceedings in the Supreme Court and Court of Appeal in the exercise of the several jurisdictions conferred on such Courts by the Constitution or by any law, including the time within which such matters may be instituted or brought before such Courts and the dismissal of such matters for non-compliance with such rules ;

(c) rules as to the granting of bail ;

(d) rules as to the stay of proceedings ;

(e) rules providing for the summary determination of any appeal or any other matter before such Court by petition or otherwise, which appears to the Court to be frivolous and vexatious or brought for the purpose of delay ;

(f) the preparation of copies of records for the purpose of appeal or other proceedings in the Supreme Court and Court of Appeal ;

(g) the admission, enrolment, suspension and removal of attorneys-at-law 41[ * * * ] and the rules of conduct and etiquette for such attorneys-at-law ;

(h) the attire of Judges, attorneys-at-law, officers of court and persons attending the courts in Sri Lanka whether established by the Constitution, or by Parliament or by existing law ;

(i) the manner in which panels of jurors may be prepared, and the mode of summoning, empanelling and challenging of jurors ;

(j) proceedings of Fiscals and other ministerial officers of such courts and the process of such courts and the mode of executing the same ;

(k) the binding effect of the decisions of the Supreme Court ;

(l) all matters of practice and procedure including the nature and extent of costs that may be awarded, the manner in which such costs may be taxed and the stamping of documents in the Supreme Court, Court of Appeal, High Court and Courts of First Instance not specially provided by or under any law.

(2) Every rule made under this Article shall be published in the Gazette and shall come into operation on the date of such publication or on such later date as may be specified in such rule.

(3) All rules made under this Article shall as soon as convenient after their publication in the Gazette be brought before Parliament for approval. Any such rule which is not so approved shall be deemed to be rescinded as from the date it was not so approved, but without prejudice to anything previously done thereunder.

(4) The Chief Justice and any three Judges of the Supreme Court nominated by him may amend, alter or revoke any such rules of court and such amendment, alteration or revocation of the rules will operate in the like manner as set out in the preceding paragraph with reference to the making of the rules of court.


The Court of Appeal

The Court of Appeal.

137. The Court of Appeal shall consist of the President of the Court of Appeal and not less than six and not more than eleven other Judges who shall be appointed as provided in Article 107.


Jurisdiction of the Court of Appeal.

138. (1) The Court of Appeal shall have and exercise subject to the provisions of the Constitution or of any law, an appellate jurisdiction for the correction of all errors in fact or in law which shall be 42[committed by the High Court, in the exercise of its appellate or original jurisdiction or by any Court of First Instance], tribunal or other institution and sole and exclusive cognizance, by way of appeal, revision and restitutio in integrum, of all causes, suits, actions, prosecutions, matters and things 43[of which such High Court, Court of First Instance] tribunal or other institution may have taken cognizance :

Provided that no judgment, decree or order of any court shall be reversed or varied on account of any error, defect or irregularity, which has not prejudiced the substantial rights of the parties or occasioned a failure of justice.

(2) The Court of Appeal shall also have and exercise all such powers, and jurisdiction, appellate and original, as Parliament may by law vest or ordain.


Powers in appeal.

139. (1) The Court of Appeal may in the exercise of its jurisdiction, affirm, reverse, correct or modify any order, judgment, decreee or sentence according to law or it may give directions to such Court of First Instance, tribunal or other institution or order a new trial or further hearing upon such terms as the Court of Appeal shall think fit.

(2) The Court of Appeal may further receive and admit new evidence additional to, or supplementary of, the evidence already taken in the Court of First Instance touching the matters at issue in any original case, suit, prosecution or action, as the justice of the case may require.


Power to issue writs, other than writs of habeas corpus.

140. Subject to the provisions of the Constitution, the Court of Appeal shall have full power and authority to inspect and examine the records of any Court of First Instance or tribunal or other institution, and grant and issue, according to law, orders in the nature of writs of certiorari, prohibition, procedendo, mandamus and quo warranto against the judge of any Court of First Instance or tribunal or other institution or any other person :

44[Provided that Parliament may by law provide that in any such category of cases as may be specified in such law, the jurisdiction conferred on the Court of Appeal by the preceding provisions of this Article shall be exercised by the Supreme Court and not by the Court of Appeal.]


Power to issue writs of habeas corpus.

141. The Court of Appeal may grant and issue orders in the nature of writs of habeas corpus to bring up before such Court -

(a) the body of any person to be dealt with according to law ; or

(b) the body of any person illegally or improperly detained in public or private custody,

and to discharge or remand any person so brought up or otherwise deal with such person according to law :

Provided that it shall be lawful for the Court of Appeal to require the body of such person to be brought up before the most convenient Court of First Instance and to direct the judge of such court to inquire into and report upon the acts of the alleged imprisonment or detention and to make such provision for the interim custody of the body produced as to such court shall seem right; and the Court of Appeal shall upon the receipt of such report, make order to discharge or remand the person so alleged to be imprisoned or detained or otherwise deal with such person according to law, and the Court of First Instance shall conform to, and carry into immediate effect, the order so pronounced or made by the Court of Appeal:

Provided further that if provision be made by law for the exercise by any court, of jurisdiction in respect of the custody and control of minor children, then the Court of Appeal, if satisfied that any dispute regarding the custody of any such minor child may more properly be dealt with by such court, direct the parties to make application in that court in respect of the custody of such minor child.

Power to bring up and remove prisoners.

142. The Court of Appeal may direct -

(i) that a prisoner detained in any prison be brought before a court-martial of any Commissioners acting under the authority of any Commission from the President of the Republic for trial or to be examined relating to any matters pending before any such court-martial or Commissioners respectively ; or

(ii) that a prisoner detained in prison be removed from one custody to another for purposes of trial.


Power to grant injunctions.

143. The Court of Appeal shall have the power to grant and issue injunctions to prevent any irremediable mischief which might ensure before a party making an application for such injunction could prevent the same by bringing an action in any Court of First Instance :

Provided that it shall not be lawful for the Court of Appeal to grant an injunction to prevent a party to any action in any court from appealing to or prosecuting an appeal to the Court of Appeal or to prevent any party to any action in any court from insisting upon any ground of action, defence or appeal, or to prevent any person from suing or prosecuting in any court, except where such person has instituted two separate actions in two different courts for and in respect of the same cause of action, in which case the Court of Appeal shall have the power to intervene by restraining him from prosecuting one or other of such actions as to it may seem fit.


Parliamentary election petitions.

144. The Court of Appeal shall have and exercise jurisdiction to try election petitions in respect of the election to the membership of Parliament in terms of any law for the time being applicable in that behalf.


Inspection of records.

145. The Court of Appeal may, ex mero motu or on any application made, call for, inspect and examine any record of any Court of First Instance and in the exercise of its revisionary powers may make any order thereon as the interests of justice may require.


Sittings of the Court of Appeal.

146. (1) The Court of Appeal shall ordinarily exercise its jurisdiction at Colombo:

Provided however that the Chief Justice may from time to time when he deems it so expedient direct that the Court of Appeal shall hold its sittings and exercise its jurisdiction in any judicial zone or district, specified in the direction.

45[(2) The jurisdiction of the Court of Appeal may be exercised in different matters at the same time by the several judges of the Court sitting apart :

Provided that -

(i) its jurisdiction in respect of -

(a) judgments and orders of the High Court pronounced at a trial at Bar, shall be exercised by at least three Judges of the Court ; and

(b) other judgments and orders of the High Court, shall be exercised by at least two Judges of the Court ;

(ii) its jurisdiction in respect of its powers under Article 144 shall be exercised by the President of the Court of Appeal or any judge of that Court nominated by the President or one or more of such Judges nominated by the President of whom such President may be one ;

(iii) its jurisdiction in respect of other matters, shall be exercised by a single Judge of the Court, unless the President of the Court of Appeal by general or special order otherwise directs].

(3) In the event of any difference of opinion between two Judges constituting the Bench, the decision of the Court shall be suspended until three Judges shall be present to review such matter.

(4) The judgment of the Court of Appeal, shall when it is not an unanimous decision, be the decision of the majority.


Registry of the Court of Appeal and office of Registrar.

147. The Registry of the Court of Appeal shall be in charge of an Officer designated as the Registrar of the Court of Appeal who shall be subject to the supervision, direction and control of the President of the Court of Appeal.

38. Substituted by the Fourteenth Amendment to the Constitution Sec. 9 (3), for “election petitions.”

39. Substituted by the Fourteenth Amendment to the Constitution Sec. 9 (1), for “election of the President.”

40. Substituted by the Fourteenth Amendment to the Constitution Sec. 9 (2), for “election of the President shall be.”

41. Words “and the appointment of senior attorneys-at-law.” Omitted by the Eighth Amendment to the Constitution Sec. 3.

42. Substituted by the Thirteenth Amendment to the Constitution Sec. 3 (a), for “committed by any Court of First Instance.”

43. Substituted by the Thirteenth Amendment to the Constitution Sec. 3 (b), for “of which such Court of First Instance.”

44. Inserted by the First Amendment to the Constitution Sec. 2 w.e.f. Sept. 7th 1978.

45. Original para (2) repealed and substituted by the Eleventh Amendment to the Constitution Sec. 6