Comparative Constitutional Law

Assignment No: 2

M.PRAGASH
2013/L/015
DEPARTMENT OF LAW

THE POWERS OF THE

PROVINCIAL HIGH COURT
AND ITS
EFFECTIVENESS

CONTONTS
Introduction.

Establishment of provincial High court.

Powers and Functions of Provincial High court.

Judicial Pronouncement regarding Provincial High court.

Defects of this institution.

Conclusion.

Reference.

Introduction
Up to the 13th amendment The High Court of Sri Lanka is established under
Article 111 of the Constitution. This is by its very origin and designation a
highly centralised institution. This institution under the 1978 constitution is not
an establishment but rather a re-establishment because the origin of the High
Court of Sri Lanka dates back to British times.
13 amendment which was the product of the Indo-Ceylon accord of 1987, to
devolve certain powers of the government to the provincial councils.
The Provincial High Court which is essentially a creation of the Thirteenth
Amendment. This institution is empowered to exercise a provincial jurisdiction
and has been authoritatively ruled as exercising decentralised judicial functions
under a rearranged system for the judiciary. This arrangement is expected to
supplement and perhaps implement the process of political and administrative
decentralisation begun with the Thirteenth Amendment.
The hierarchy of Courts of first instance in Sri Lanka is set out in Section 2 of
the Judicature Act No. 2 of 1978. Primary Courts, Magistrate's Courts, District
Courts and High Courts are Courts of first instance. High Courts exercise
appellate and review jurisdiction in some matters. The Court of Appeal and the
Supreme Court are the Appellate Courts.

Establishment of Provincial High Court

Article 154P under the Thirteenth Amendment to the Constitution set up the
High Courts of the Provinces.
154P (1) There shall be a High court for each province with effect from the
date on which this chapter comes into force.
The original High Court of Sri Lanka was not done away with but continued to
function under the new decentralised arrangements. Primary distinction between
the High Court of Sri Lanka and the newly set up Provincial High Courts is
contained in their distinct and markedly different demarcations of jurisdictions
and jurisdictional areas. Though stationed in provinces now under the Judicature
Act they still exercise a Zonal Jurisdiction authorised under that Act as opposed
to the provincial jurisdiction contemplated for the Provincial High Courts under
the 13th amendment.
In terms of Article 110(2) of the Constitution the judges of the High Court of Sri
Lanka are appointed by the President and are subject to removal and
disciplinary control of the President on the recommendations of the Judicial
Services Commission. Article 154P(2) states that the Chief Justice shall
nominate, from among Judges of the High Court of Sri Lanka, such number of
Judges as may be necessary to each such High Court of the Province. The Chief
Justice is also empowered to transfer Judges of the High Courts of the Provinces
so nominated by him. This again highlights the essential duality of the two
institutions.
The High Court is the only Court which exercise the jurisdiction of the Court of
First Instance and the appellate jurisdiction.
It exercises the civil jurisdiction as well as the criminal jurisdiction.
The High Court of Civil Appeal
The High Court of Civil Appeal has been established with the objective of
expediting the civil appeals in District Courts Appeals in District Courts are
heard by the High Court of Civil Appeal.
High Court And The Provincial High Court

High Court cases can be heard in the presence of a Judge of the High Court or a
Jury. The High Court take cognizance of cases to be heard on submission of
indictments submitted by the Attorney General.

Commercial High Court

Commercial High Court is empowered to hear cases involving commercial
transactions worth of which exceeds three million rupees. Jurisdiction over the
cases falling under the Intellectual Property Act.
The Provincial High Court sits in the following cities: Colombo, Kalutara,
Galle, Matara, Batticaloa, Jaffna, Chilaw, Negombo, Gampaha, Kegalle,
Kurunegala, Kandy, Avissawella, Ratnapura, Badulla, and Anuradhapura.

The Powers & Functions of the Provincial

high court
The jurisdiction, powers and functions of the High Courts of the Provinces are
laid down in Article 154P(3).
154P(3)-Every such High court shall
a) Exercise original criminal jurisdiction of the High court of Sri Lanka
in respect of offences committed within the province.
b) Notwithstanding anything in Art 138, exercise Appellate and
Revisionary jurisdiction in respect of conviction, sentences, and order
of Magistrates court and primary courts within the province.
c) Exercise other jurisdiction parliament may provide.
154P (4)- Provincial High court shall have jurisdiction to issue (respect of
provincial council list)
a) Order in the nature of Hobeas Corpus; in respect of persons illegally
detained within the province
b) Order in the nature of writs of Certiorari, Prohibition, Procendo,
Mandamous and Quo warranto against any person exercising , within the
province any power under
1) Any law or
2) Any statutes made by provincial council (respect with provincial
council list).
(5) The Judicial Service Commission may delegate to such High Court, the
power to inspect and report on, the administration of any Court of First Instance
within the Province.
(6) Subject to the provisions of the Constitution and any law, any person
aggrieved by a final order, judgement or sentence of any such Court, in the

exercise of its jurisdiction under paragraphs (3)(b) or (3)(c) or (4) may appeal
there from to the Court of Appeal in accordance with Article 138.

Trials at a High Court are conducted by the State (Sri Lanka), through the
Attorney-Generals Department. The Attorney Generals Department prosecutes
on behalf of the State.
Murder trials and grievous offences(Rape, Robbery etc..) against the State are
tried at the High Court; other criminal offenses are tried at a Magistrates Court.
The High Court is empowered to pass death sentence, life imprisonment and
impose fines and give other redress.

While some High Court trials will have a jury, some trials will not have a jury.
The types of cases that require a jury are provided in the Second Schedule of the
Judicature Act No.2 of 1978. Also, the Attorney-General has the authority to
determine whether a case that does not fall into a category provided in
the Second Schedule of the Judicature Act No.2 of 1978 should nonetheless
have a jury.
The Penal Code stipulates the types of cases argued in a High Court:-The Penal
Code defines most of the criminal offenses known to our law. And the Code of
Criminal Procedure Act. No: 15 of 1979 sets out which of these offenses [can be
tried] by each court [High Court and Magistrates Court].
The High Court of each province exercises:
Original jurisdiction over prosecution of offenses committed within a
particular province.
Admiralty jurisdiction, which is usually exercised in Colombo.
Commercial jurisdiction, which is vested by the High Court of the
Provinces (Special Provisions) Act, No. 10 of 1996.
Jurisdiction to hear cases involving attempts to influence the outcome of
a decision made, or an order issued, by the Judicial Service Commission.
This jurisdiction is vested by Article 111 L (2) of the Constitution.
Applications for the return of, or access to, a child, under the Hague
Convention, is handled by the High Court of the Western Province (Civil
Aspects of International Child Abduction Act, No:10 of 2001).

 Appellate jurisdiction over convictions, sentences, and orders imposed by

the Magistrates Courts and Primary Courts within the province.
Writ jurisdiction in respect to powers exercised under any law or statutes
enacted by the Provincial Council of that particular province, with regard
to an issue delineated in the Provincial Council List.
Appeals of decisions reached by Labor Tribunals, Agrarian Tribunals, and
Small Claims Courts.
The usefulness of the High Court of the Provinces could be further enhanced by
enlarging their powers by granting them power to entertain Fundamental Rights
applications in regard to violations and matters within the Province.
High Courts in the provinces the statutory right to deal with all bail applications
in regard to offences committed within the respective provinces.
Provincial High Courts should also be empowered in appropriate instances to
transfer cases from subordinate courts within the Province.
High court of the Provinces (Special Provision) Act was enacted to provide for
the procedure to be followed in relation to the right of appeal from the High
court of the Provinces, This law also confers Appellate and Revisionary
jurisdiction on the High court of the province in respect of the labour tribunals
within the Province.

High court of the Provinces (Special Provision) Act, No 10 of 1990

Sec 2- (1) Exercise of the original criminal jurisdiction of the High court of Sri
Lanka , and to appeals to the court of appeal from such High court, shall ,
mutatis mutandis, apply to
a) The institution of proceedings and the procedure for trials (including
trials by jury and trials at bar)
b) The right of appeal to the court of appeal from provincial High court.
c) The hearing, by the court of appeal, of appeals preferred to it from
judgements, convictions, order or sentences entered or imposed by a
provincial high court.
(2) transfer of any action, prosecution, proceeding or matter pending
before any court, shall apply to the transfer of any action, prosecution,
proceeding or matter pending before any high court established by art 154P for
a province.

Sec 3-Appellate and revisionary jurisdiction of provincial high court respect of

order made by labour tribunals within that province and in respect of any land
situated within that province.
Sec 4- Any party aggrieved by any conviction, sentence or order imposed by a
Magistrates court, a primary court, a labour tribunal or Agrarian service act
within the province who can appeal to provincial high court within the province.
Sec 5- conviction, sentences or orders imposed by Magistrate courts, primary
courts and labour tribunals within that province and from orders made under sec
5 or 9 of the Agrarian services act, in respect of land situated within that
province and to applications made to such high court, for revision of any such
conviction, sentence or order appeals to the High Court established by art 154P
for a province.
Sec 6- (a) Provincial high court may in the exercise of any appellate jurisdiction
vested in the constitution or sec 3 (154P) affirm, reverse, correct or modify any
order, judgement, decree or sentences or may give directions to any court to any
court of first instance.
(b)The high court may further receive and admit new evidence additional
to or supplementary of, the evidence already taken in the court of first instance
touching the matter at issue in any original case, suit, prosecution, or action, as
the justice of the case may require.
Sec 7- Court of appeal invoking the jurisdiction vested in that court by Art 140
and 141 shall, mutatis mutandis apply to Provincial High court (154P) invoking
the jurisdiction vested in art 154P(4).

According to the Amendment Act No 54 of 2006 High court of the

Provinces (Special Provision)
Sec 5A (1)- Jurisdiction of a high court established by Art 154P to hears appeals
from District court within the province.
Sec 5B- Hearing of Appeals shall be ordinarily exercised at all times by not less
than two judges of that court.

Commercial high court

The High Court for the Western Province is vested with exclusive jurisdiction in
respect of some specified commercial matters in terms of the High Court of the
Provinces (Special Provisions) Act, No. 10 of 1996. The Western Provincial

Commercial High Court is vested with Provincial jurisdiction in respect of the

following matters with effect from 11th October 1996

All actions where the cause of action has arisen out of commercial transactions
(including causes of action relating to banking, the export or import of
merchandise, services affreightment, insurance, mercantile agency, mercantile
usage, and the construction of any mercantile document).
Companies Act, No. 7 of 2007.
Intellectual Property Act No 36 of 2003.
Actions that are filed under this provision should be on disputes arisen on
commercial transactions of which the value exceeds Rs. 3 million.

Judicial Prononcement
We can observe the practical jurisdiction of the provincial high court through
the significance judgement of the Soloimuthu Rasu case ;
The question immediately before the Supreme court was whether the power to
issue quit notices was within the power devolved to provincial councils.
The court needed to resolve that matter in order to decide whether the provincial
High court had the power to issue writs in these circumstances.
However, in deciding this case, C.J Mohan Peiris held that it was required to
determine the extent to which land powers were devolved to the provincial

councils and the event to which they were retained by the centre. The out come
of this analysis in C.J Peiriss reasoning was that land continued to vest with the
central government and was; therefore, beyond the jurisdiction of the
provincial High court.

Defects of Provincial High Court system

&conclusion
The introduction of a Provincial High court in Sri Lanka, in order
to devolve the power could be regarded as a land mark in the
judicial structure of the country. This should, no doubt assist to
ease the burden of long standing delays in the court process.
However, it is important to note that the provincial high courts
would have to function under certain limitations in order to
maintain the values of remedies such as orders in the nature of
Habeas Corpus and the prerogative writs.
The high court exercises a limited appellate jurisdiction with the
court of appeal.
Judges of the high courts are appointed and controlled by
central government, provincial council has no control over the
judiciary functioning in the province.
Jurisdiction of the Provincial High Court often depends on the
interpretation of the 3 lists in the ninth schedule of the
constitution.
The variation in the administration of Justice and expansion of
the Jurisdictional limits under the 13th amendment do not
amount to devolution of judicial power which continues to
remain firmly rooted to the centre.
The superior courts of Sri Lanka have taken the view that the
purpose of the establishment of the Provincial High court has

been facilitate litigants to have their cases, in appeal, revision

or by way of writs, heard in their respective Provinces instead of
having to invoke the jurisdiction of the superior courts in
Colombo. This has been a positive development as the
establishment of this court has been decentralize the Judicial
administration in the country.
It was not the intention of the framers of the 13 th amendment
to devolve the judicial power of the people to the Provincial
High Courts, as the provincial judicial officers continue to
answerable and accountable to the central government.

REFERENCE
13th Amendment to the constitution.

High court of the Provinces (Special Provision) Act, No 10 of 1990.

High Court of the Provinces (Special Provisions) Act, No. 10 of 1996.

According to the Amendment Act No 54 of 2006 High court of the

Provinces (Special Provision).

Net resources.