The current legal system of Sri Lanka dates back to 1801, the year that the British established the Supreme Court of Judicature in the island of Ceylon. Sri Lanka is a unique country where a mixed legal system functions. Ordinarily, there are two main legal systems in the world.
The civil law system, the origin of which is traced back to Rome, is the first legal system where statutes contain the law and the role of a Judge. Such a system is limited to the interpretation of statute law.
The second is the common law system which originated in England and which was largely created by the ecclesiastical approach of the church. Under the common law system, the role of a Judge was to identify new concepts of law and had a wider role than the role of a judge in a civil system.
In 1505, when the Portuguese arrived in the island, Ceylon had an established legal system. The king was the head of the judiciary and his subordinate officer exercised judicial power in different geographical locations, based on their standing in the administrative hierarchy.
In 1796, when the British captured the coastal areas from the Dutch there were two legal systems operating in the island. The Rule of the King prevailed in the midlands while the Roman Dutch Law was applied in the coastal areas.
Beginning in the 1880s, the British introduced the written law. The Penal Code, the old Criminal Procedure Code, the Civil Procedure Code and the Evidence Ordinance are some such laws introduced during this period.
When one examines the law relating to procedure it would be correct to state that we have inherited a large volume of procedural concepts from English Law. Especially in the context of criminal procedure, the British administration in the 20th century preferred to apply a procedure similar to that in England with which they were quite conversant.
The procedural rules are applied even today, after 290 years. From the inception of our legal system in the current form until the mid 1990s, the courts in Sri Lanka based their judgements and orders on three types of evidence. Oral evidence was the first, where words spoken by a witness is admitted.
Documentary evidence was the second type, where the contents of the document could be used as material evidence. The third type facilitated the identification of material other than documents.
Technology-based evidence
In the 1990s, the necessity to introduce provisions relating to technology-based evidence arose. This opening was necessary consequent to the judicial comments in a celebrated case, Benwell v Republic of Sri Lanka[1]. This was a case where the Australian government had requested for the extradition of Phillip Golden James Benwell, alleged to have committed several acts of embarrassment through the computer systems in Australia.
A loophole in the law in our legal system was detected at this point as information generated through a computer could not be identified as evidence in a Sri Lankan Court.This lacuna existed primarily in view of two reasons.
The interpretation of the term ‘property’ within our law was restricted to tangible property and did not extend to information in a computer. The traditional interpretation of the term ‘document’ did not include anything stored in a computer.
This lacuna was filled when Parliament introduced the Evidence (Special Provisions) Act No 14 of 1998 which recognised two types of Evidence, namely, computer evidence and audio and video evidence. In both instances, contemporary audio and video evidence is now admitted.
During the past three decades, technology has advanced to such an extent that the lawmaker would now be required to review the existing laws and consider legal reforms. Especially, in the context of criminal law, the mechanism adopted by criminals changed drastically.
In narcotic cases, new methods are adopted by criminals such as ‘early cash’ payment mechanisms. As for trafficking of narcotics, it is frequently reported in the newspapers that the criminals have adopted methods such as the use of mobile phones for such activity.
The Prevention of Money Laundering Act No. 5 of 2006 also opens doors for criminals to adopt new methods in utilising this procedure for crime.
Tracing, tracking, forfeiting and confiscation of proceeds of crime has always been a problem for many legal systems. Consequent to several international conventions such as the Convention on the Suppression of the Terrorist Financing Act No. 25 of 2005 and International Convention for the Suppression of Financing of Terrorism, United Nations Convention against Transnational Organized Crimes of November 2000, the member states are merely compelled to enact domestic laws in this area of law.
Accordingly, the Sri Lankan Parliament passed several important statutes giving legal recognition to the above Conventions.
The Prevention of Money Laundering Act 2006, Convention on the Suppression of the Terrorist Financing Act No. 25 of 2005 and the Financial Transaction Reporting Act No. 6 of 2006 are such laws currently applicable in Sri Lanka in this area of the law.
It is relevant to note here that during the past few years, a large number of investigations had taken place in the country pertaining to the above area of the law.
Another area where technology is used by wrongdoers would be social media related circumstances. The Parliament of Sri Lanka has enacted the Computer Act of 2007 to deal with computer crimes.
The provisions of this Act demonstrate that most offences under this Act are largely based on the concept of hacking or unauthorised access. The circumstances where the owner of the computer commits offences using his own computer, and where the offence relates to national security, national economy or social order it is covered by this Act.
If an analysis is done on traffic passing through social media, there are many instances where users on social media may commit common law offences such as criminal defamation, criminal intimidation, extortion, blackmail, spreading of rumours and similar offences.
Unfortunately, the legal mechanism currently available to handle such situations is barely adequate. This is more so in the context of obscene publications, obscene material, child pornography and sexually explicit material exchanged through social media.
Data Protection Act
Another issue which has a serious impact in this context is the absence of a Data Protection Act. There have been instances where some telephone companies refused to submit data on the basis that such data is lost.There is currently no law which obligates or which makes an institution accountable in this context.
Another problem I see in the context of the current criminal justice system is that the law enforcement agencies have been set up separately under the normal law.
An investigation is conducted by the Police, analysis is done by the Government Analysts’ Department and prosecutions by the Attorney General’s Department. They work independently at different stages of a criminal investigation or a trial. While it is my experience that such independent functions could result in long delays in litigation, it is my view that all these agencies should be brought under one umbrella in order to expedite such delays. Such a transformation would be totally unconventional.
Therefore, it is essential that a separate unit is set up in every district consisting of prosecutors, police officers, officers of the Government Analysis Department, officers of the EQD and other forensic analysts.
Such a team of people working together would minimise the delays within the criminal justice system, and eradicate allegations of corruptions against individual institutions.
I am happy that the current Minister of Justice is focused on digitalising court procedure. Digitalising the court mechanism would include the use of technology for the legal process involved in criminal investigations. This is a separate concept that the Minister, being a senior practitioner and actively involved in legal practice, would know the requirement in this area. Filing of pleadings and filing of written submissions are two primary concerns and, in my view too, Parliament should provide for laws for the recognition of electronic filing.
As a person who has practised law for 34 years, I welcome the Justice Minister’s concept of digitalising court proceedings and pleadings.
While such a mechanism would facilitate the litigants and the legal profession, I think the Government should focus on establishing a separate unit under one umbrella to conduct criminal investigations. Such a unit should contain professionals such as analysts, IT specialists, accountants, auditors, forensic experts and medical experts.
If both these concepts can be worked out and if the law reforms are implemented, the issue of law’s delay would be addressed.
I would like to summarise the steps that are necessary to introduce their transformation.
1. Have a re-look at all procedural laws and laws touching upon admissibility of evidence.
2. Have a re-look at all existing laws dealing with technology-based material.
3. Introduce a Data Protection Act.
4. Establishment of a separate unit for law enforcement and criminal investigation.
5. Devolve the investigations and analysing authority to all districts.
6. Introduce a more simplified mechanism of admissibility of evidence.
7. Introduce legislation regarding accountability of service providers.
8. Reconsider laws relating to criminal defamation.
9. Introduce laws relating to social media.
10. Digitalise the court procedure.
[1] (1978-79) 2 SLR 194.
Compiled by Aanya Wipulasena