Countries of the World/COUNTRYS.BIN/dp/0339/03390.txt

Text File | 1991-06-25 | 21KB | 342 lines

$Unique_ID{COW03390}
$Pretitle{296}
$Title{Sri Lanka
Chapter 5D.   The Penal Code}
$Subtitle{}
$Author{Peter R. Blood}
$Affiliation{HQ, Department of the Army}
$Subject{court
cases
criminal
government
law
appeal
prison
sri
act
lanka}
$Date{1990}
$Log{}
Country:     Sri Lanka
Book:        Sri Lanka, A Country Study
Author:      Peter R. Blood
Affiliation: HQ, Department of the Army
Date:        1990

Chapter 5D.   The Penal Code

     The passage of the Penal Code, Ordinance Number 2 of 1883, marked an
important stage in the island's transition from Roman- Dutch to British law.
Despite the wide variety of amendments to the code, from 1887 to as recently
as 1986, it remained substantially unchanged, and established a humane and
unambiguous foundation for criminal justice. Crimes are divided into eighteen
categories that include offenses against the human body, property, and
reputation; various types of forgery, counterfeit, and fraud; offenses against
public tranquillity, health, safety, justice, and the holding of elections;
and offenses against the state and the armed forces. The code provides for six
different types of punishment: death by hanging, rigorous imprisonment (with
hard labor), simple imprisonment, whipping, forfeiture of property, and fine.
For sentences that involve whipping, the provisions of the Penal Code have
been modified by the Code of Criminal Procedure, which sets a maximum sentence
of twenty-four strokes, and requires that a medical officer be present during
the execution of the sentence. Offenders under sixteen are given a maximum of
six strokes with a light cane, and the sentence must be carried out in the
presence of the court and, optionally, of the parents. In cases of
imprisonment, the Penal Code specifies a maximum sentence permissible for each
offense, leaving the specific punishment to the discretion of the judge.
Imprisonment for any single offense may not exceed twenty years. The death
penalty is limited to cases involving offenses against the state (usually of
open warfare), murder, abetment of suicide, mutiny, and giving false evidence
that leads to the conviction and execution of an innocent person. If the
offender is under eighteen years of age or pregnant, extended imprisonment is
substituted for a death sentence.

     An attempt by the government to eliminate capital punishment received
mixed reactions. In April 1956, the Bandaranaike government proposed the
suspension of the death penalty for murder and abetment of suicide for a trial
period of three years; this experiment was to be reviewed thereafter with the
aim of abolishing capital punishment from the statute book. Parliament passed
the Suspension of Death Penalty Bill in May 1956.

     In October 1958, the government appointed a commission on capital
punishment to examine the question of whether the suspension had contributed
to any increase in the incidence of murder. The commission released a
provisional report shortly before Prime Minister S.W.R.D. Bandaranaike was
assassinated in September 1959 (see Sri Lanka Freedom Party Rule, 1956-65, ch.
1). Concluding that there was no immediate evidence to support a resumption of
capital punishment, the commission recommended that the suspension be
continued until April 1961 to permit a more extensive and conclusive study. As
a result of the assassination, however, the commission's recommendation was
set aside. In October 1959, the government decided to restore the death
penalty, and a bill to this effect was passed in November 1959.

Criminal Procedure and the Structure of the Courts

     As defined by the Constitution of 1978, the judiciary consists of a
Supreme Court, a Court of Appeal, a High Court, and a number of magistrate's
courts (one for each division, as set out in the Administration of Justice
Law). In cases of criminal law, the magistrate's courts and the High Court are
the only courts with primary jurisdiction, and their respective domains are
detailed in the Code of Criminal Procedure. Appeals from these courts of first
instance can be made to the Court of Appeal and, under certain circumstances,
to the Supreme Court, which exercises final appellate jurisdiction. In all
cases, the accused has the right to representation by an attorney, and all
trials must be public unless the judge determines, for reasons of family
privacy, national security, or public safety, that a closed hearing is more
appropriate.

     The vast majority of the nation's criminal cases are tried at the lowest
level of the judicial system, the magistrate's courts. Cases here may be
initiated by any police officer or public servant, or by any oral or written
complaint to the magistrate. The magistrate is empowered to make an initial
investigation of the complaint, and to determine whether his court has proper
jurisdiction over the case, whether it should be tried by the High Court, or
whether it should be dismissed. Magistrates' courts have exclusive original
jurisdiction over all criminal cases involving fines of up to Rs1,500 or
prison sentences of up to two years. If the magistrate's court is determined
to have the necessary jurisdiction, prosecution may be conducted by the
complainant (plaintiff) or by a government officer, including the attorney
general, the solicitor general, a state counsel, a pleader authorized by the
attorney general, or any officer of any national or local government office.
At the trial, the accused has the right to call and cross-examine witnesses.
Trials are conducted without a jury, and the verdict and sentence are given by
the magistrate. Any person unsatisfied with the judgment has the right to
appeal to the Court of Appeal on any point of law or fact.

     For criminal cases involving penalties over Rs1,500 or two years
imprisonment, original jurisdiction resides with the High Court. The High
Court is the highest court of first instance in criminal law, and exercises
national jurisdiction. Prosecution must be conducted by the attorney general,
the solicitor general, a state counsel, or any pleader authorized by the
attorney general. During the trial, the accused or his or her attorneys are
allowed to present a defense and call and cross-examine witnesses. For more
serious offenses, including crimes against the state, murder, culpable
homicide, attempted murder, and rape, the law provides for trial by jury. In
such cases, a jury of seven members is chosen by lot from a panel elected by
the accused unless the court directs otherwise. Both the prosecution and the
defense have the opportunity to eliminate proposed members of the jury. The
jury is required to reach a verdict by a majority of no less than five to two.
(Under the Prevention of Terrorism Act of 1979, the right to a jury was
suspended for a wide variety of offenses involving violations of communal
harmony defined as incitement of one ethnic group against another.) In cases
where the law does not prescribe trial by jury, the judge gives the verdict
and passes sentence at the conclusion of the hearings. As in the magistrate's
courts, the accused has the right of appeal to the Court of Appeal on any
matter of law or fact.

     As its name suggests, the Court of Appeal has only appellate jurisdiction
in matters of criminal law. Cases before the court are conducted without a
jury. Appeals from the High Court must be heard by a bench of at least three
judges, whereas appeals from a magistrate's court require at least two judges.
Verdicts are reached by majority decision, and therefore a supplemental judge
is added in cases of a split vote. As in other courts, appellants are entitled
to representation by an attorney, but if they cannot afford legal counsel, the
Court of Appeal may, at the discretion of the judges, assign an attorney at
the court's expense. After the court has handed down its decision, further
appeal to the Supreme Court may be made on any matter involving a substantial
question of law, but an appeal requires the approval of either the Court of
Appeal or the Supreme Court it