The Mahavamsa records that there was a “Justice Bell” “Vanischaya Ghanta” which was tied to the head of the bed of King Elara, who ruled this country for 44 years and which could be rang by means of a rope that was tied to the palace gate by anyone who suffered injustice.

Court hierarchy

During the time of the last of the Sri Lankan monarchs, there was a hierarchy of Courts. There were the village councils or the Gamsabhawas, comprised the elders of each village, the District Councils or the Rata Sabhawas composed of the leaders of the villages, the Courts of the Government Officers, such as the Courts of Vidana, Liyanarala, Koralas and Arachchis, Mohottalas, Wanniyas and chiefs of Uda Rata, Dissawas and Adigars. From these Courts an appeal was finally granted to the King who exercised supreme appellate powers. The Gamsabhawa or Village Council was the lowest Court in the elaborate judicial system during the time of the Sri Lankan kings. It is presumed that the Gansabhawas must have existed from about 425 B.C. which is approximately the date on which King Pandukabhaya established village boundaries over the whole island.

This Court which met at the Ambalam or under a shady tree heard cases involving debts, petty thefts and boundary disputes.

The essential feature of this Court was the endeavour made to settle amicably the disputes between parties. The procedure was simple and there was an appeal to Rata Sabhawa or the Koralas and ultimately through the hierarchy of various Courts to the King.

The Gamsabhawa presided over by the Vidane functioned during the Portuguese period. They functioned also during the Dutch times.

In Kandyan Kingdom of ancient Sri Lanka the Gamsabhawas continued until the British conquest in 1815.

Charter of Justice

The system that we have now commenced with the Charter of Justice introduced by the British in the year 1801, which established the Supreme Court with two Judges; the Chief Justice and one other Judge. This brought about for the first time a separation between the Governor who exercised executive and legislative power and the Courts which exercise judicial power. Thus a firm tradition of separation of power was established which forms the bedrock of the rule of law. The Charter of the April 18, 1801 also established a Court of record styled the High Court of Appeal with jurisdiction to hear and determine appeals from any Courts of Justice in Ceylon except the Supreme Court of Judicature.

The Judges of the High Court were the Governor, the Chief Justice, the other Judge and the Secretary of State or any two of them. This Court had its own seal. There was to be an ultimate appeal to the King in Council. By the proclamation of the August 20, 1801 English was made the official langauge of the Courts.
The Charter of 1833 while completely reorganizing the Courts system and creating an exclusive jurisdiction both civil and criminal in the newly established Courts and the new Courts which the Charter of 1833 set up throughout the country enjoyed a superior prestige.

Village tribunals

In 1871, the Village Communities Ordinance No. 26 of 1871 was enacted giving recognition to village tribunals which began to exist as the smallest court of first instance in the island. The Presidents of these Courts were assisted by councillors and the Government Agent exercised a sort of paternal control both judicially and administratively. The Government Agents were empowered to sit with the President and councillors and generally from time to time to report such proceedings to the Governor. An appeal was provided to the Government Agent and from the Government Agent to the Governor. There was no provision for legal representation. The persons who were appointed as presidents were not professional men but were the products of Kachcheri training.

The courts Ordinance that came into force on August 2, 1890 consolidated the laws with regard to Courts and their powers and established the Magistrate’s Court, the District court and the Supreme Court. This structure continued till the Administration of Justice law was enacted in 1973. Before dealing with the changes in 1973, it is essential to consider the changes occurred in village tribunals which existed as the smallest Court of first instance in Ceylon.

Rural Courts

The Rural Courts Ordinance became law in 1945. Under this Ordinance the President of the Rural Court began to function alone without the assistance of assessors. These Courts which were being treated as subsidiary departments of the Kachcheri now began to function as independent people’s Courts of small causes.
But the Ordinance sought to keep the essential feature of these Courts by preserving its main function, namely, to effect amicable settlements of dispute between parties.

In the modern history of Ceylon legal system, the Conciliation Boards Act No. 10 of 1958 stands out as a bold experiment. The Act was intended to encourage the amicable settlement of “petty village disputes” and thus avoid bad blood, costly and time - consuming litigation, and crime inspired by such petty quarrels.

The Court’s structure came into force on 1890 continued till the Administration of Justice Law which was enacted in 1973, which established for the first time the High Courts in this country.

The High Courts thus established functioned in the respective zones throughout the country and were not rested with appellate jurisdiction but exercised only the original criminal jurisdiction hither to exercise by the Supreme Court.

In 1978, all Conciliation Boards in existence were dissolved and the Conciliation Boards Act was repealed by the Judicature Act No. 02 of 1978.

Judicature Act

The Judicature Act was part of the constitutional re-arrangements which accompanied the new Constitution of Sri Lanka. The Courts of first instance set up under this Act made a considerable departure from the existing Courts.
The Judicature Act introduced a new court called the Family Court with some original jurisdiction in respect of matrimonial disputes, actions for divorce, nullity and separation, damages for adultery, claims for maintenance and alimony, disputes between spouses, parents and children as to matrimonial property, custody of minor children, dependant’s claims, guardianship and curatorship matters, claim in respect of declaration of legitimacy and illegitimacy and marriage, adoptions and applications for amendment of birth registration entries, claims for seduction and breach of promise of marriage.

By the Judicature (Amendment) Act No. 71 of 1981, the Jurisdiction in respect of claims for maintenance was transferred to the Magistrate’s Court.

A new concept of an officer known as a Family Counsellor was introduced by Section 26. Section 26 has now been amended by the Judicature (Amendment) Act No. 71 of 1981 attaching the Family Counsellor to a judicial district instead of to an individual court thus making him available also to the Magistrate’s Courts within that District.
This was necessary because of the transferring of the jurisdiction in respect of claims for maintenance to Magistrate’s Courts.

The Judicature Act also introduced a new Court called the Primary Court whose jurisdiction included original civil jurisdiction where the debt, damage, demand or claim does not exceed Rs. 1,500 and exclusive criminal jurisdiction in respect of such offences as may, by regulation, be prescribed by the Minister.

Court of Appeal

The Section 34 of the Judicature Act is amplified by Section 31 and 44 of the Primary Courts Procedure Act No. 44 of 1979. The next change came with the enactment of the present Constitution in 1978. It established for the first time the Court of Appeal.

The appellate jurisdiction hither-to exercise by the Supreme Court was vested in the Court of Appeal and the Supreme Court was vested with Constitutional jurisdiction and jurisdiction as the final appellate court.
A two tiered appellate structure was thus created with the first appeal to the Court of appeal from any original court to be availed of as of right by an aggrieved party and a second appeal to the Supreme Court to be exercised only with leave to be granted in respect of substantial questions of law or where the matter was considered fit for review by the Supreme Court (Article 128 of the Constitution).

This innovation of the establishment a Court of Appeal to which all appeals then pending before the Supreme Court stood removed brought about a delay in the process of disposing of appeals.

The fact that there was another appeal to the Supreme Court made it incumbent on the Court of Appeal to deliver considered judgements on all matters that were decided upon slowing down the pace of disposal to a point where the court accumulated a backlog of nearly 19,000 appeals by the year 1993.

Several steps were taken over the years to relieve the burden of the Court of Appeal. Quite apart from the inordinate delay, the exercise of appellate jurisdiction by the Court of Appeal, based only in Colombo has other negative factors, they are:

(i) Litigants from far removed parts of the country, form Jaffna to Hambantota, have to trek to Colombo for the purpose of their civil appeals.

(ii) They have to retain Counsel in Colombo and incur a higher overall cost than at provincial level.
Gradually steps were taken to transfer the appellate jurisdiction of the Court of Appeal to the High Courts. The process commenced with the 11th Amendment to the Constitution effected on June 5, 1987, which amended Article 111 (1) of the Constitution by deleting the reference to the High Court as being a Court of original jurisdiction. This paved the way for the High Court to exercise Appellate jurisdiction, in addition to its original jurisdiction.

Provincial Councils

The 13th Amendment to the Constitution effected on November, 14, 1987 established Provincial Councils, as a measure of devolving power directed at a settlement of the ethnic problem and the ongoing conflict. Article 154P of the 13th Amendment vested an appellate jurisdiction in the Provincial High Court in respect of Magistrate’s Courts and Primary Courts within the Province.

It also vested a writ jurisdiction in the Court with regard to matters set out in the Provincial Council List. Article 15 (c) left an opening to widen the jurisdiction of the Provincial High Court by stating that the Court could ‘exercise such other jurisdiction and power as Parliament may by law provide.’

It is in pursuance of this provision in the in the Constitution that the High Courts of the Provinces (Special Provisions) Amendment Act No: 54/2006 was enacted by Parliament and certified on December 28, 2006.
This Act amends the previous Act NO: 19 of 1990, which vested in the High Court of the Provinces appellate jurisdiction in respect of orders of Labour Tribunals and those made in terms of Sections 5 or 9 of the Agrarian Services Act.

Section 5A of the Act No. 54 of 2006 provides that High Courts established by Article 154P of the Constitution shall exercise Appellate and Revisionary jurisdiction in respect of judgements, decrees and orders delivered and made by the District Courts or Family Courts, within such Province.

Section 5A of Act No: 54 of 2006 referred to by me previously vests in the Provincial High Court with a concurrent jurisdiction with that of the Court of Appeal in regard to appeals and applications in revision from District Courts within the Province. Section 58 provides that such jurisdiction has to be exercised “by not less than two judges of that court sitting together as such High Court.”

This is a significant safeguard introduced by law, so that these matters would be considered by a minimum of two judges and where necessary three Judges if there is a division of opinion.

Explicit provision

Thus the first matter to be addressed as to jurisdiction is fully answered in the explicit provision contained in Section 5A (1) and the appointment of Judges made as required. However the jurisdiction is concurrent with that of the Court of Appeal.

The vesting of concurrent jurisdiction carries with it certain drawbacks of “forum shopping” of a party to a proceeding going to a Court of his choice and to as to the manner in which pending appeals are to be disposed of. These matters are addressed in Section 5D of Act No: 54 of 2006.

Section 5D (2) empowers the President of the Court of Appeal in consultation with the Chief Justice to issue directions from time to time transferring pending appeals and applications in revision for hearing and determination by the appropriate High Court.

The measure of expedition that has been introduced could be seen from the fact that as at December 2006 there were only two courts at Colombo hearing civil appeals, whereas now three courts in Colombo and almost 12 courts in the Provinces would be hearing such appeals.

It had been contended in the past that if a Court is vested with the appellate and revisionary jurisdiction it carries with it a right of a party to invoke, such jurisdiction. In the case of Martin vs Wijewardena 1989 2 SLR page 409, a Divisional Bench of the Supreme Court considered this question, and it was held that;

Right of appeal

“A right of appeal is a statutory right and must be expressly created and granted by statute. It cannot be implied. Article 138 is only an enabling Article and it confers the jurisdiction to hear and determine appeals to the Court of Appeal. The right to avail of or take advantage of that jurisdiction is governed by the several statutory provisions in various legislative enactments.”

In relation to the High Courts of the Provinces as well, there should be a specific right of appeal in a party. Section 5A (2) of Act No. 54 of 2006, addresses this issue and provides that the sections in the Judicature Act No. 2 of 1978 (Sections 23 and 27), which deals with the right of appeal to the Court of Appeal would be read and construed as including a reference to the Provincial High Court and that “any person aggrieved by any judgment, decree or order of the District Court or Family Court may invoke the jurisdiction of the Provincial High Court established for that purpose.”

Similarly, as regards Revision this section provides inter alia that Section 753 of the Civil Procedure Code which deals with the revisionary power of the Court of Appeal would apply to the Provincial High Court.
Thus the legislative scheme of Act No. 54 of 2006 avoids a laborious exercise of enacting a new law with regard to the right to invoke the jurisdiction and adopts a simple methods of making the same law as in relation to the Court of Appeal applicable to the High Courts.

As stated above Section 5A (2) of Act No. 54 of 2006 makes all the relevant provisions of the Civil Procedure Code and Rules of the Supreme Court being written law in terms of the definition in Article 170 of the Constitution) applicable in relation to Court of Appeal to be operative in relation to the Provincial High Courts that is now vested with concurrent jurisdiction.

Long process

This would avoid the long process of argument which arises when new procedures are created. The procedures have been applicable for more than two decades in regard to the Court of Appeal and the law that has been settled by several judgments would facilitate easy disposal of matters in the Provincial High Courts without undue delay arising from arguments with regard to matters of procedure.

I would now deal with certain general matters with regard to the basis of review exercised by the Appellate Court. The underlying principle is that a judgment will not be reversed or varied solely on the basis of any error, defect or irregularity. The Appellate Court has to consider its impact.

The proviso to Section 5A (2) of Act No. 54 of 2006 contains the same provision as in the Constitution, that no judgment or decree of the District Court be reversed or varied on account of any error, defect or irregularity which has not prejudiced the substantial rights of the parties or occasional failure of justice.

As regard the review of findings of fact the decision in De Silva and others vs Senaratne 1981 2 SLR page 7 contains useful guidelines as to when findings on questions of fact can be reversed by the Appellate Court. There are also such guidelines contained in the judgment in the case of Collettes vs Bank of Ceylon 1984 2SLR253.

Civil appeals

In conclusion, I wish to state that I have taken pains to set out some of the vital matters with regard to jurisdiction and procedure at a juncture when we shift the hearing of civil appeals hitherto based only in Colombo to the Provinces.

If these measures can be implemented with dedication by the respective judges, the members of the Bar and of course the litigants in the same spirit that authorities have planned and implemented the transition, the problem of delay at the appellate level which has plagued us for nearly quarter of a century would be a thing of the past.
Even the problem of delay at the Court of first instance would be a thing of the past if Section 7 of the Mediation Boards Act No: 72 of 1988 is fully implemented large number of cases will be referred to Mediation Boards and thus the Courts of first instance would find more time to dispose the remaining cases quickly that comes before the Court for adjudication.

That is why I say if everybody concerned is determined to implement Section 7 of this act then there will be meaningful progress in the administration of Justice in Sri Lanka.

(Excerpts from the keynote address of Jaffna High Court Judge R. T. Vignaraja at the Orientation Program to the Law students organised by the Department of Law, University of Jaffna at the Courts Complex, Jaffna on March 15, 2009 )