INTRODUCTION TO LAW AND THE LEGAL SYSTEM

WHAT IS LAW?

Poet W.H. Auden said, ‘The law is The Law’ and we tend to know it when we see it. But it is
a question that philosophers and legal theorists have expended many pages in trying to
answer. Prof. H.L.A. Hart in his work titled ‘The Concept of Law’ says that “few questions
concerning human society have been asked with such persistence and answered by serious
thinkers in so many diverse, strange and even paradoxical ways as the question what is law?”

For Hart, there is a difficulty in answering the questions because of what he calls ‘the three
recurring issues’, namely,
a. The relationship between law and morality.
b. The relationship between law and rules.
c. The relationship between law and coercive orders.

According to Hart, unless and until there are answers to these recurring questions the issue of
what is law will continue. The following are some definitions of various academics reduced
to its most basic form:-
a. Law is a system of rules laid down by a body or person with the power and authority
to make law;
b. Law is what legislators, judges and lawyers ‘do’;
c. Law is a tool of oppression used by the ruling class to advance its own interests;
d. Law is a system of rules grounded on fundamental principles of morality.

Simply stated, ‘Law’ can be defined as a set of rules which we are bound to obey (i.e.
those rules which are enforced by the State). Failure to obey laws would result in us having to
face certain repercussions. Like legal rules there are social rules as well. Society may be
governed by social rules as well. It goes without saying that the two types of rules are clearly
distinct from each other. Social rules could include ‘proper’ behaviour or etiquette.

Killing a human being is both wrong legally and socially. It is hard to say which social rule
should receive the force of law and which should not. You are likely to be fined for failure to
wear a helmet while travelling on a motorbike. But it might not be frowned upon as being
socially unacceptable to not wear a helmet. How a social rule becomes law may depend on
the society you live in. i.e. religion, ethnicity, culture, tradition etc.

WHAT IS LAW FOR?

Maintenance of public order and safety - Law is seen as the ‘glue’ that holds the fabric of
society together. The law protects us from complete social disorder and anarchy (i.e.
lawlessness).

Protection of individual rights and liberties - This is to ensure that everybody is equal
before the law and that nobody is above the law. Therefore powerful persons are all
controlled by the laws in place and this would mean that all individual rights are protected
equally

1
The organization and control of the political sphere - The law sets out the boundaries of
politics by preserving the political structure and process under which governance is possible.
The best example of the relationship between law and state is a written constitution, although
U.K. does not have a written constitution.

The regulation of economic activity -Facilitates and encourages national and international
trade in goods and services by setting out legal frameworks by which parties can be bound.

The regulation of human relationships - It serves to legitimise and control various aspects
of interpersonal relationships such as entering into marriages, distribution of family wealth,
regulation of the parent-child relationship etc.

The preservation of a moral order - Sometimes law and morals overlap. Some morals are
given the force of law.

The regulation of international relations - The regulation of international relations is also

done by a branch of law called public international law. The creation of states, definition of
state boundaries, diplomacy, international humanitarian law etc.

Regulation of legal rules and social rules –

a. Law, in the sense that we are using it, is definable as a system of rules. It guides and
directs our activities in much of day to day life: the purchases we make in a shop, our conduct
at work, and our relationship with the state are all built upon the foundation of legal rules
b. However it is important to note that apart from legal rules society is also governed by
a mass of other rules which are not laws in the formal sense, but merely social conventions or
perceptions of ‘proper’ behavior.
c. But the differentiation of these rules is found in the mechanisms used to enforce these
rules. Thus, while anyone would accept that stealing should be liable to a penalty under the
criminal law, we might be surprised to see someone being prosecuted for eating an apple
using a flick knife. Regulating the latter is not important enough to our society so as to
require the force of law.
d. Any kind of behaviour which is accepted as proper by the society may be defined as
social rules and any behaviour regulated by law are legal rules. The difference between these
rules can be identified by analyzing the consequences of violating these rules. For example –
1) Breaking the law will result in punishment by courts
2) Violating a social rule will result in only criticism

e. Partington points out that one of the problems of the many functions of law is that
sometimes functions can be in conflict. For example, the objective of preserving social order
may conflict with the protection of civil liberties or the right to expression.

f. This conflict occurs when citizens want to take to the streets to demonstrate to express
their dissatisfaction about some issue and the police are concerned that such a demonstration
might lead to violent disorder. Which objective should prevail? Freedom of expression or
social order?

g. Similarly, when governments are facing terrorist threats they must balance the desire
to protect society through enlarging the power of the police and courts against the danger to
civil liberties and infringement of human rights.

2
 HISTORY OF SRI LANKAN LEGAL SYSTEM

European control of what is now Sri Lanka began a few years after 1505 when inclement
weather drove a Portuguese fleet of ships, commanded by Lourenco de Almeida, into what is
now the Colombo harbor. Colombo, now the capital of Sri Lanka, is on the west coast of Sri
Lanka.
 
Almeida, who also realized the strategic value of the island-nation in the context of trade
routes, established cordial relations with the King in Kotte. Over a few years the Portuguese,
capitalizing on the divisions within the Kotte kingdom, gradually gained control of much of
the country’s coastal regions. Kotte, situated in a suburb of Colombo, is now the legislative
capital of Sri Lanka.
 
The Portuguese did not introduce their laws in the coastal regions they controlled. They did,
however, establish the Roman Catholic faith as the strongest Christian faith in the country. 
The Portuguese were ousted by the Dutch during the 1600s.
 
With the Dutch gaining control of Sri Lanka, primarily in the coastal regions, Roman-Dutch
law gained a presence in the country. This “Roman-Dutch law has withstood many a tide of
legal and political change to remain as the foundation of Sri Lanka’s general and common
law.”
 
The Dutch judicial system was well organized. Three major courts of justice were
established: one each in Colombo (west), Galle (south), and Jaffna (north). A circuit court,
the Land Raad, presided over by a dissava, sat in various districts. Local chiefs sat in on cases
involving local customs.  Thus the customary and personal laws that existed in the West,
South and North of the country also were administered in the courts, unless these were in
sharp discord with Dutch jurisprudence.
 
The customary and personal laws are based on ancient customs of the Sinhalese and Tamils
whose ancestors hailed from specific regions in the country, as well as the customs of the
Muslims.
 
In the 18th century, Roman-Dutch law was increasingly used in the south-west and the south.
As a consequence, private property (land) rights spread rapidly in these areas, and property
transfers were subject to Roman-Dutch law.

The Dutch also made efforts to codify the customary law of the different ethnic groups. 
Codifying Sinhala customary law, however, posed difficulties because of regional diversity
and associated issues. Partly as a consequence of this problem, Roman-Dutch law
increasingly applied to the Sinhalese in the coastal areas, especially to those Sinhalese who
were Christians.
 
The Thesawalamai, the laws and customs of the Tamils of the Northern Jaffna province, was
codified in 1707.
 
A code of Muslim law was applied with the consent of Muslim elders.
 

3
The British ousted the Dutch from Sri Lanka in 1796, and adopted a unitary administrative
and judicial system for the entire country. A decision by the British to continue enforcing the
existing laws, and consequent developments, led to Roman-Dutch law gaining a firm
presence in the entire country. As the Sri Lankan legal academic Anton Cooray states:
 
“The surrender of the Dutch possessions in Sri Lanka in the twilight years of the Eighteenth
Century was a blessing in disguise for the future of Roman-Dutch law (in Sri Lanka).”
 
In 1815, when the Kandyan Kingdom in central Ceylon fell to the British, for the first time in
history, the entire country of Ceylon came under the rule of a foreign power. At this point, the
application of Roman-Dutch law was extended to the whole country: “The British
administration, which undertook to continue to apply existing laws, extended the application
of Roman-Dutch law beyond the Dutch controlled  coastal areas when, in 1815, British
sovereignty extended to the whole of Sri Lanka.” 
 

The British established a modern system of judicial and civil administration. They respected
the prevailing laws, namely the Roman-Dutch laws, and the customary laws that applied to
the different ethnic groups.
 
British rule lasted through 1948, when Sri Lanka gained its independence.
 
LEGAL CONSTRUCTS
 
Under British rule, the Charter of Justice of 1801 ensured the continuation of the laws that
were in force at that time.  These applicable laws were all of the following: Roman-Dutch
principles brought into force by the Dutch, the Kandyan Law that applied to the Kandyan
provinces, the Thesawalamai Law (also spelt as ‘Tesawalamai’) that applied to the Jaffna
Tamils in the Jaffna province, the Muslim Law that applied to the Muslims, and a limited
body of Buddhist and Hindu Law applicable mainly to Buddhist and Hindu religious property
and customs.
 
This conglomeration of different laws led to British judges encountering some difficulty in
ascertaining applicable laws, especially where Roman-Dutch law principles were expected to
be followed. As a consequence, on many occasions British judges introduced principles of
English law on the basis that there existed ambiguity on the applicability of Roman-Dutch
law. The lack of judicial precedents, and the un-codified nature of the laws, provided an
excuse for judges to avoid applying Roman-Dutch law principles.
 
As a consequence, a body of English law principles was in force along with Roman-Dutch
law, in addition to indigenous laws such as Kandyan Law and Thesawalamai.
 
Roman-Dutch Law now generally applies in Sri Lanka when statutes and indigenous laws
do not regulate the issue in question. Roman-Dutch Law represents in Sri Lanka an inherited
legal tradition. It has co-existed with several systems of indigenous laws, and the English
common law, creating a “distinct legal culture that is described today as a ‘mixed’ civil and
common law system.”
 

Thus “Roman-Dutch law is often described in Anglo-American legal terminology as the

‘common law’ of Sri Lanka … A system of law that applies in Sri Lanka when statutes and
indigenous laws do not regulate any matter.”

4
 
In fact, when the British themselves declared Roman-Dutch law as the common law of
Ceylon, Roman-Dutch law assumed even greater importance under the British than it had
enjoyed under Dutch rule of Ceylon. Today, Roman-Dutch law exists only in Sri Lanka and
South Africa.
 
Kandyan Law applies to ethnic Sinhalese whose can trace their lineage back to the Kandyan
provinces during the period of the Kandyan monarchy in central Sri Lanka. The Kandyan
monarchy ceased to exist with the British takeover of central Sri Lanka in 1815.
 
Kandyan Law does not apply to all Sinhalese who are now resident in the Kandyan
provinces; however, Kandyan Law does apply to Kandyan Sinhalese who now do not reside
in the Kandyan provinces in central Sri Lanka.  Kandyan Law that remains applicable to
Kandyan Sinhalese in present day Sri Lanka relates to marriage, divorce, and interstate
succession.
 
Kandyan Sinhalese have the option of choosing to marry under the Marriage and
Divorce (Kandyan) Act, or the General Marriage Ordinance. Kandyan Sinhalese who choose
to marry under the Kandyan Act will be governed by Kandyan law in matters relating to
marriage, divorce and interstate succession by virtue of the Kandyan Law Ordinance, as well
as the Kandyan Matrimonial and Inheritance Ordinance.
 
Kandyan laws on adoption are also applicable to those who marry under Kandyan Law. The
General Law applies in other related issues such as alimony and child custody.
 
Kandyan Sinhalese who choose to marry under the General Marriage Ordinance are
governed by Roman-Dutch Law in matters relating to marriage, divorce, and interstate
succession.
 
The relevant laws on this topic are mostly in the Kandyan Declaration and
Amendment Ordinance, and the Kandyan Marriages and Divorce Act.
 
Theswalamai Law is based on ancient customs of Jaffna Tamils in Sri Lanka. It applies to
Tamil inhabitants of the Jaffna Peninsula in Northern Sri Lanka. This customary and personal
law also applies to numerous Jaffna Tamils who no longer live in the Jaffna Peninsula.
 
It is a commonly held belief among many in Sri Lanka that Thesawalamai applies only to
Jaffna Tamils who reside in the Jaffna peninsula. The Supreme Court of Sri Lanka, however,
ruled in a 1988 case,“Sivagnanalingam v. Suntheralingam  that Thesawalamai is a personal
law that applies to Jaffna Tamils wherever they live in the country, and that it applies also to
their movable and immovable property, wherever it is situated in the country. The Supreme
Court, overturning decisions of the lower courts, held that Thesawalamai would not apply to
Jaffna Tamils only if there is “unequivocal evidence of abandonment of…inhabitancy in
Jaffna.”
 
This Supreme Court ruling suggests that a Jaffna Tamil could live for decades in another part
of the country and not lose “Jaffna inhabitancy” if he or she, for instance, continues to own
property in the Jaffna Peninsula, or even visits Jaffna on a somewhat regular basis. The ruling
also indicates that each case must depend on its own facts.
 

5
The only Thesawalamai laws that are now applicable to Jaffna Tamils relate to property and
interstate succession resulting from marriage.
 
 In Family Law related issues, the Muslim Special Laws apply to all Muslims in Sri Lanka.
When a Muslim marries another Muslim, the bride and the groom do not have the option of
getting married under the General Law, unlike in the case of Kandyan Sinhalese. Marriage,
divorce and other related issues involving Muslims are governed by the Marriage and
Divorce (Muslim) Act, no.13 of 1951, and any subsequent amendments.
 
Issues related to interstate succession and donations, involving Muslims, are dealt with under
the Muslim Interstate Succession Ordinance No.10 of 1931, and any subsequent amendments.
 
Also, under Muslim personal laws, for instance, “Although section 25 (1) (b) of the Muslim
Marriage and Divorce Act states that the consent of the bride is essential to a marriage, in
reality her presence is not required when the marriage contract is concluded between the
father or guardian of the bride, and the groom. The consent of the bride is irrelevant to the
conclusion of the marriage contract
 
The efforts needed to revise these personal laws based on ancient customs, in order to remove
any bias against the rights of women, are now hindered by the debate over minority rights in
Sri Lanka:
 
CONSTITUTIONAL HISTORY

Sri Lanka’s constitutional history reflects the victories, struggles and tensions of its society.
Modernity was thrust upon the island through colonial domination and rule from the 16th
century onwards till Sri Lanka gained independence in 1948.

Sri Lanka boasts of a written history spanning back to 5th CE. Pre-modern history records the
establishment of regional kingdoms which were occasionally brought under the rule of a
monarchy of the entire island and the introduction and establishment of Buddhism in Sri
Lankan society. Due to its strategic geographical position, the island was well known across
Asia, the Middle East etc.
The first formal encounter with potential colonial powers was in 1505 with the arrival of
Portuguese to the island. The Portuguese conquered the Kingdom of Kotte in 1580. Over the
next few decades, they extended their control in the maritime provinces of the island. During
the period 1638 – 1663, alliances were formed by the Lankan rulers with the Dutch in the
interest of ousting the Portuguese from the island. The colonial rule by the Dutch was
established in 1640 and continued till the territories under their control were ceded to the
British pursuant to the Treaty of Amiens (1802). During the Dutch period, they established a
system of administration drawing from the existing structures of governance such as the
office of the village headman. Roman-Dutch law was introduced to Sri Lanka during this
time along with a basic court structure and a judiciary. The British were the only colonial
rulers to establish control over the entire island with the signing of the Kandyan Convention
in 1815. Up to 1948 Sri Lanka was part of the British Empire. It is during the latter part of
this period that the foundations were being laid in Sri Lankan society for the establishment of
modern forms of government.

The road to constitutional democracy in Sri Lanka has been marked with the relatively early
grant of universal franchise, peaceful changes of government, and strong welfare policies on

6
education and health. During this time Sri Lanka has also experienced ethnic tensions, two
youth insurrections, an armed separatist movement and challenges with regard to power
sharing in governance. Following the end of the internal armed-conflict in May 2009,
ensuring democratic governance, strengthening the rule of law, and ensuring respect for
pluralism are the main significant challenges that confronts Sri Lanka. The current
constitutional reform process seeks to address these challenges through the adoption of a new
constitution.

The first written Constitution adopted for Ceylon (as Sri Lanka was then known) was the
Ceylon (State Council) Order in Council of 1931, commonly referred to as the Donoughmore
Constitution. Prior to this Constitution, several other reforms had been introduced
periodically by the colonial administration to establish constitutional governance, namely,
a. The Colebrooke-Cameron Reforms 1833
b. The Crewe-McCullum Reforms of 1912
c. The Manning Reforms of 1922
d. The Manning-Devonshire Reforms of 1924

Of these reforms the Colebrooke-Cameron reforms set the foundation for constitutional
governance in the country by bringing significant changes to the then existing structure. The
subsequent reforms gradually introduced more progressive mechanisms for governance
including the election of persons to the Legislative Council on the basis of communal
identity.
The right to vote, however, was limited to men on the basis of education and wealth. The
number of unofficial members in the Legislative Council was also increased over time due to
demands for further power in administration by local leaders.

During this time, the local political leadership began to mobilize the people to push for
extensive reforms in administration. The demand for self-government too was gradually
gaining momentum in the Island. The Donoughmore Constitution was introduced within this
context. Abolishing communal representation; the introduction of universal franchise; and the
establishment of an Executive Committee system, Cabinet and State Council were some of
the significant aspects of this constitution. Two political questions dominated the debates on
constitutional reform during this time. One was independence from the British and the other
was minority representation in government in the event Ceylon became an independent state.

The Second World War paved the way for the local political leadership of Ceylon to bargain
for political independence on the basis that Ceylon supported Britain in its war efforts. The
Ceylon (Constitution) Order in Council, 1946, which followed the Soulbury Commission
report and thus referred to as the Soulbury Constitution, established a parliamentary
democracy in Ceylon and included several other unique features in the system of governance.
The parliament included two chambers – the House of Representatives and the Senate. The
Constitution did not include a chapter on fundamental rights. However, it did include a
clause, which prohibited the enactment of legislation that would discriminate against
minorities. The public service was independent and the Privy Council was the final court of
appeal. The three Ceylon (Constitution) (Amendment) Orders in Council, all of 1947, and the
Ceylon (Independence) Order in Council, 1947 led to independence Britain, but as a
Dominion of Britain.

Growing political dissatisfaction with dominion status, due to various reasons and reflecting
the global trends at the time, the Ceylonese political leadership sought to break free from its

7
received tradition of constitutional governance and establish an ‘autochthonous’ constitution.
Autochthonous means ‘derived from the soil’ and such a constitution would depend for its
legitimacy not on a British parliament but in its own People. The Members of Parliament met
at another location as a Constituent Assembly, deliberated and adopted the First Republican
Constitution of Sri Lanka in 1972.

The 1972 Constitution described Sri Lanka as a free, sovereign and independent republic and
recognized that it drew its authority from the sovereignty of the people. The legislature, that
is the National State Assembly (NSA), was the supreme instrument of state power of the
republic. This Constitution declared Sinhala to be the official language and granted the
foremost place to Buddhism while recognizing religious freedom. Some civil and political
rights were recognized as fundamental rights in the constitution with no explicit remedy for
their enforcement. The Cabinet of Ministers exercised powers of appointment, transfer,
disciplinary control and dismissal of state officers and were responsible therefore to the NSA.
Appointment of judges of the lower courts and of state officers administering justice was by
the cabinet after receiving the advice of the Judicial Services Advisory Board.

With the change of government in 1977, constitutional reforms were being considered yet
again. A new constitution was proposed through a Parliamentary Select Committee and
adopted in 1978 as the Second Republican Constitution of Sri Lanka.

The Executive Presidency was the defining feature of this constitution – all appointments to
high posts were made by the President. Presidential immunity from suit while in office and a
broader chapter on fundamental rights with a judicial remedy were included in this
constitution. To date this constitution has been amended 19 times. Of these the sixth,
thirteenth, seventeenth, eighteenth, and nineteenth amendments are of considerable political
significance. The current constitutional reform process is an effort towards introducing a
constitution based on an extensive public consultation process and with the popular support
of all the political parties in Parliament.
a. Soulbury Constitution of 1948
b. First Republican Constitution of 1972
c. Second Republican Constitution of 1978

THE 1978 CONSTITUTION

The Constitution of Sri Lanka revolves around a President invested with broad executive
powers. It has 172 articles, recognizes Buddhism as the state religion, and guarantees a broad
range of fundamental rights. The Constitution also establishes the duties of the state and the
citizen. It is the task of the state to establish a democratic socialist state, ensure the
distribution of wealth, oversee economic development, and raise educational and cultural
standards. It must also commit itself to the decentralization of the government and the
promotion of national identity through the elimination of discrimination. In return, it is the
duty of the citizen to foster national unity by relinquishing their personal rights to ensure
racial or religious harmony and protect public health and morality.

EXECUTIVE BRANCH

8
Political power is divided between the legislative, executive, and judicial branches. The most
powerful of these is the executive branch. The President is the Head of the State,
Government, and the Armed Forces. He is elected by a direct vote of the people for 6 year
terms. While the President can be impeached by a combined effort of Parliament and the
Judicial Branch, no other may challenge his decisions in either a public or private capacity.
The Prime Minister and the Cabinet advise the President in his capacity as the Head of
Government and are charged with the direction and control of the Government. While they
are ultimately responsible to Parliament, they are appointed by the President.

LEGISLATIVE BRANCH

The Legislature of Sri Lanka is unicameral, with a Parliament of 225 members elected to 6
year terms by a direct vote. The members of Parliament then elect a Speaker, Deputy
Speaker, and a Chair of Committees. The main purpose of the Parliament is to pass bills and
resolutions. This legislation becomes law upon a majority vote and the endorsement of the
Speaker. If the Cabinet requires it, however, the bill may require a referendum, which the
President must endorse. No court can question a law adopted in this way.

JUDICIAL BRANCH

The judicial branch of Sri Lanka is comprised of a Supreme Court, a Court of Appeals, a
High Court, and other courts created by law. It is the task of these courts to protect and
enforce individual rights of the people. The Supreme Court holds the sole power of
constitutional review, and its jurisdiction also extends to matters concerning fundamental
rights, final appeals, and election issues. It also has the power to review the actions of
Parliamentary members and may advise Parliament in the legislative process.

THE SUPREME COURT

The Supreme Court is the highest and final court of record, and exercises final civil and
criminal appellate jurisdiction.
 
Litigants who do not agree with a decision of the original court, be it civil, criminal, or Court
of Appeal, may take the case before the Supreme Court, with permission from the Court of
Appeal, or special permission from the Supreme Court. The Supreme Court, however, will
only agree to consider cases involving a substantial legal issue.
 
The Supreme Court is composed of a Chief Justice and not less than six, and not more than
ten, other judges.
 
Cases that fall under the several jurisdictions of the Supreme Court are exercised, subject to
provisions in the Constitution, by a bench of at least three judges of the Supreme Court.  Thus
different cases may be heard at the same time by several judges of the Supreme Court sitting
apart.
 
The Constitution provides the Chief Justice with the authority to increase the number of
Supreme Court judges hearing a particular case to five or more judges. This increase in the
number of judges hearing a Supreme Court case would transpire especially if the issue under
consideration is one of general and public importance.

9
 
Appeals of decisions of a High Court Trial at Bar are heard by a Bench of five or more
Supreme Court judges.
 
The Supreme Court is entrusted with certain exclusive jurisdictions. Subject to provisions in
the Constitution, the Supreme Court exercises jurisdiction over constitutional matters and
fundamental rights issues.
 
Also, the Supreme Court exercises sole and exclusive jurisdiction over questions concerning
the constitutionality of a parliamentary bill or a particular provision in the bill, subject to
certain constitutional requirements. The Supreme Court has the exclusive jurisdiction to hear
and determine issues relating to the interpretation of the Constitution.
 
The Supreme Court also has the sole and exclusive jurisdiction to hear and determine issues
relating to the infringement of fundamental rights by Executive or Administrative action.
These fundamental rights include freedom of thought, conscience and religion; freedom from
torture; right to equality; freedom from arbitrary arrest, detention and punishment; prohibition
of retroactive penal legislation; and freedom of speech, assembly, association and movement.
 
The Constitution provides for temporary restrictions on fundamental rights if national
security issues are involved.
 
The Supreme Court also exercises consultative jurisdiction. If the President of the Republic
deems that a question of law or fact that has arisen is of such a nature and of such public
importance, the President may refer the question directly to the Supreme Court for an
opinion.
 
The consultative jurisdiction also extends to any concerns expressed by any Member of
Parliament regarding the ability of the President to effectively discharge his or her duties.
These concerns, in the first instance, would be addressed in writing to the Speaker of the
House of Representatives by the member or members of Parliament. These concerns would
be that the President is permanently incapable of discharging the functions of the office due
to mental or physical frailty, or that the President is guilty of intentional violation of the
Constitution, treason, bribery, misconduct or corruption involving the abuse of the powers of
the Office of President, or any offense under any law involving moral turpitude.
 
When the Speaker, subject to specific requirements in the Constitution, refers the allegations
to the Supreme Court, the Court is required to report its findings to the Speaker within two
months. During the Supreme Court’s determination of the issue, the President can appear
before the Court to present his or her case, or the President may be represented by an
attorney-at-law. The Supreme Court then reports its determination, and the reasons for its
determination, to the Parliament.
 
This determination and opinion of the Supreme Court should be by at least five judges of the
Supreme Court, including the Chief Justice, except for in the event of the Chief Justice’s
recusal. The Chief Justice’s recusal will result in another judge of the Supreme Court taking
the Chief Justice’s place.
 
Based on the Report from the Supreme Court, the Parliament may vote to remove a President
from office, subject to specific requirements in the Constitution.

10
 
The Supreme Court also exercises jurisdiction over legal issues related to the election of a
President of the country, and legal issues surrounding a referendum. The Constitution
stipulates that the foregoing two issues have to be determined by a bench of at least five
Supreme Court judges, including the Chief Justice, unless the Chief Justice appoints another
Supreme Court judge in his or her place.
 
Legal issues surrounding any breach of privileges of Parliament by any person also fall under
the purview of the Supreme Court.

COURT OF APPEAL
 
The Court of Appeal is the first appellate court for decisions of all original courts and certain
Tribunals.
 
The Court of Appeal is composed of the President of the Court, and not less than six, and not
more than eleven other judges. Many cases at the Court of Appeal are presided over by a
single judge.
 
The Court of Appeal hears appeals against judgments of the High Courts.  It exercises
appellate jurisdiction for the correction of errors in fact or in law at a High Court, or any
Court of first instance, or Tribunal, or other Institution.  In addition to the jurisdiction to
affirm, reverse, correct, or modify a judgment, the Court of Appeal may give directions to a
Court of first instance, Tribunal, or other Institution, or order a new trial, or order additional
hearings as the Court of Appeal deems appropriate.
 
“Even when there is no right of appeal from a particular court or tribunal, [the Court of
Appeal] can exercise [its] powers of  ‘revision’ and quash the original court’s or tribunal’s
order [based on] an error of law apparent [in] the record.”  The Court of Appeal, if
appropriate, also has the authority to issue a ‘stay order’ and suspend proceedings in a lower
court until the revision application is heard and determined.
 
The Court of Appeal also has the authority to receive and admit new evidence additional, or
supplementary, to evidence already recorded in a court of first instance.
 
Appeals of judgments, sentences and orders at a High Court Trial at Bar are forwarded
directly to the Supreme Court by virtue of the Code of Criminal Procedure (Amendment) Act,
No.21 of 1988.
 
The Court of Appeal, in exercising its power to examine and reverse a judgment of any court
of first instance, has the authority to examine any record of any court of first instance.
 
The Court of Appeal also exercises the power to grant and issue, as provided by law, writs of
certiorari, prohibition, procedento, mandamus, and quo warranto.
 
The Court exercises jurisdiction to grant writs of habeas corpus  in order to bring before the
Court a person who has to be dealt with according to the law, or to bring before the Court a
person illegally or improperly detained in public or private custody.
 

11
The Court of Appeal grants injunctions, and also exercises the jurisdiction to try petitions
challenging the election of a Member of Parliament.
 
The Court of Appeal sits in Colombo, the Capital city. The Chief Justice may direct that
particular sittings of the Court be held in another judicial zone or district.
 
Appeals against judgments, sentences and orders of the High Court (other than judgments,
sentences and orders delivered at a Trial-at-Bar), are heard by at least two judges of the Court
of Appeal.
 
Parliamentary election petitions are heard by the President of the Court of Appeal, or by a
judge of the Court of Appeal nominated by the President of this Court, or by more judges of
the Court of Appeal nominated by the President of this Court, of whom the President of the
Court may be one.
 
Other issues before the Court may be heard by a single judge of the Court of Appeal.
 
If the Court hearing a case consists of two judges and they fail to agree on a decision, the
issue is reviewed by three judges of the Court of Appeal.
  
HIGH COURTS

Trials at a High Court are conducted by the State (Sri Lanka), through the Attorney-General’s
Department. The Attorney-General’s Department prosecutes on behalf of the State.
 
Murder trials and various offenses against the State are tried at the High Court; other criminal
offenses are tried at a Magistrate’s Court.
 
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 Magistrate’s Court].” 13
 
The High Court is composed of not less than ten and not more than forty judges. This Court
sits in 16 provinces in the country (16 High Courts).
 
The High Court of each province exercises:
a. Original jurisdiction over prosecution of offenses committed within a particular
province.
b. Admiralty jurisdiction, which is usually exercised in Colombo, the capital city.
c. Commercial jurisdiction, which is vested by the High Court of the Provinces (Special
Provisions) Act, No. 10 of 1996.

12
d. 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.
e. 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).
f. Appellate jurisdiction over convictions, sentences, and orders imposed by the
Magistrate’s Courts and Primary Courts within the province.
g. 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.
h. Appeals of decisions reached by Labor Tribunals, Agrarian Tribunals, and Small
Claims Courts.
 
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.
  
DISTRICT COURTS
 
District Courts are the Courts of first instance for civil cases. District Courts have jurisdiction
over all civil cases not expressly assigned to the Primary Court or a Magistrate’s Court.
 
Sri Lanka has 54 judicial districts. Every District Court is a court of record and is vested with
unlimited original jurisdiction in all civil, revenue, trust, insolvency and testamentary matters,
other than issues that are assigned to any other court by law.
 
 
Certain specific civil issues handled by the District Courts include:
 
a. Cases related to ownership of land.
b. Action by landlords to eject tenants.
c. Action to recover debts of more than Rs. 1,500.
d. Action in connection with trademark and patent rights, and infringement of copyright
laws.
e. Claims for compensation of more than Rs. 1, 500 for injuries caused by negligence.
f. Divorce cases (Formerly, divorce cases were handled by the now defunct Family
Courts).
 
 
There is a standard form of plaint for each type of action, and if necessary, there may be
variations to the form.
 
The normal procedure is for the filing of a plaint by the plaintiff.  The plaint is argued before
a District Court judge, and if the judge is satisfied that all matters are in order, an order may
be issued to serve summons, along with a copy of the plaint, on the defendant(s). Usually, the
plaintiff, or the plaintiff’s attorney, must ensure that the Court’s fiscal officer serves the
summons, with a copy of the plaint, to the defendant.
 

13
The defendant appears in court on the summons returnable date. The defendant, or his or her
lawyer, is provided with a date by which an answer to the plaint is required.
 
Further pleadings may be filed, especially if the defendant files a counter-claim, a claim in
reconvention.  The counter-claim, if any, must relate to the issue brought before the District
Court by the plaintiff. The plaintiff may then file a replication in response to the defendant’s
claim in reconvention.
 
The above procedure is the normal procedure at the District Court. There is also a Summary
Procedure for the District Court provided in Chapter 53 of the Civil Procedure Code.

MAGISTRATE’S COURTS
 
The Magistrate’s Courts are established under the Judicature Act, No.2 of 1978.
 
Each Judicial division has one Magistrate’s Court, and there are 74 judicial divisions in Sri
Lanka.
 
Each Magistrate’s Court is vested with original jurisdiction over criminal offenses (other than
offenses committed after indictment in the High Court.)
 
In cases involving criminal law, the Magistrate’s Courts and the High Court are the only
Courts with primary jurisdiction. The respective domains of these Courts are detailed in
the Code of Criminal Procedure.
 
Appeals from these courts of first instance may be made to the Court of Appeal and, under
certain circumstances, to the Supreme Court, which exercises final appellate jurisdiction. 
 
The vast majority of the nation’s criminal cases are tried at the Magistrate’s Courts level,
which forms the lowest level of the judicial system.
 
Cases may be initiated at a Magistrate’s Court by any police officer or by anyone else making
an oral or written complaint to the Magistrate. The Magistrate is empowered to make an
initial investigation of the complaint, and to determine whether his or her Court has proper
jurisdiction over the matter, whether the matter should be tried by the High Court, or whether
the matter should be dismissed.
 
If it is determined that the Magistrate’s Court has the proper jurisdiction over the matter, the
prosecution may be conducted by the complainant (plaintiff), or by an officer of the
Government, including the Attorney-General, the Solicitor-General, a state counsel, 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 party in a case who is in disagreement with a judgment has the right to appeal the
judgment, on any point of law or fact, at the Court of Appeal.
 

14
If the police decide not to institute criminal proceedings in a Magistrate’s Court, the
complainant has the option of filing a private plaint, and the complainant may retain an
attorney for this purpose. 
 
As indicated earlier, while murder trials and various offenses against the State (Sri Lanka) are
tried in a High Court, other criminal offenses are tried in a Magistrate’s Court. The Penal
Code defines which court, a Magistrate’s Court or a High Court, has the necessary
jurisdiction (Code of Criminal Procedure Act No.15 of 1979).
 
If a new offense is codified by law, for instance the Prevention of Terrorism Act, the relevant
statute will indicate the manner of trial.
 
The Magistrate’s Courts are ordinarily empowered to impose the following sentences: A fine
of up to Rs. (rupees) 1,500.00, and/or two years of rigorous or simple imprisonment, unless
special provisions vest the Magistrate’s Courts with the power to impose higher penalties.

FUNDAMENTAL RIGHTS
 
The fundamental rights declared and recognized by the Constitution of Democratic Socialist
Republic of Sri Lanka "shall be respected, secured and advanced by all the organs of
government, and shall not be abridged, restricted or denied save in the manner and to the
extent provided by the Constitution" (Article 4(d)).

a. Freedom of thought, conscience and religion

Every person is entitled to freedom of thought, conscience and religion, including the
freedom to have or to adopt a religion or belief of his choice.

b. Freedom from torture

No Person shall be subjected to torture or to cruel, inhuman or degrading treatment or
punishment.

c. Right to equality
1) All persons are equal before the law and are entitled to the equal protection of
the law.
2) No citizen shall be discriminated against on the grounds of race, religion,
language, caste, sex, political opinion, place of birth or any one of such grounds:
3) No person shall, on the grounds of race, religion, language, caste, sex or any
one of such grounds, be subject to any disability, liability, restriction or condition with
regard to access to shops, public restaurants, hotels, places of public entertainment
and places of public worship of his own religion.
4)  Nothing in this Article shall prevent special provision being made, by law,
subordinate legislation or executive action, for the advancement of women, children
or disabled persons.

d. Freedom from arbitrary arrest, detention and punishment and prohibition of

retrospective penal legislation.
1)  No person shall be arrested except according to procedure established by law.
Any person arrested shall be informed of the reason for his arrest.

15
 2)  Every person held in custody, detained or otherwise deprived of personal
liberty shall be brought before the Judge of the nearest competent court according to
procedure established by law and shall not be further held in custody, detained or
deprived of personal liberty except upon and in terms of the order of such Judge made
in accordance with procedure established by law.
3)  Any person charged with an offence shall be entitled to be heard, in person or
by an Attorney-at-Law, at a fair trial by a competent court.
4)  No person shall be punished with death or imprisonment except by order of a
competent court, made in accordance with procedure established by law. The arrest,
holding in custody, detention or other deprivation of personal liberty of a person,
pending investigation or trial, shall not constitute punishment.
5)  Every person shall be presumed innocent until he is proved guilty:
Provided that the burden of proving particular facts may, by law, be placed on an
accused person.
6)  No person shall be held guilty of an offence on account of any act or
omission which did not, at the time of such act or omission, constitute such an
offence and no penalty shall be imposed for any offence more severe than the
penalty in force at the time such offence was committed.
7)  The arrest, holding in custody, detention or other deprivation of personal liberty
of a person, by reason of a removal order or a deportation order made under the
provisions of the Immigrants and Emigrants Act or the 
Indo-Ceylon Agreement (Implementation) Act, No. 14 of 1967 or such other law as
may be enacted in substitution therefor, shall not be a contravention of this Article.

e. Freedom of speech, assembly, association, occupation and movement.

1) The freedom of speech and expression including publication;
2) The freedom of peaceful assembly;
3) The freedom of association;
4) The freedom to form and join a trade union;
5) The freedom, either by himself or in association with others and either in
public or in private, to manifest his religion or belief in worship, observance, practice
and teaching;
6) the freedom by himself or in association with others to enjoy and promote his
own culture and to use his own language;
7) the freedom to engage by himself or in association with others in any lawful
occupation, profession, trade, business or enterprise;
8) the freedom of movement and of choosing his residence within Sri Lanka; and
the freedom to return to Sri Lanka.

f. Right of access to information.

1) Every citizen shall have the right of access to any information as provided for
by law, being information that is required for the execise or protection of a citizen’s
right held by—
(a) the State, a Ministry or any Government Department or any statutory body
established or created by or under any law;
(b) any Ministry of a Minster of the Board of Ministers of a Province or any
Department or any statutory body established or created by a statute of a Provincial
Council;
(c)  any local authority; and

16
 (d)  any other person, who is in possession of such information relating to any
institution referred to in sub-paragraphs (a) (b) or (c) of this paragraph.
2)  No restrictions shall be placed on the right declared and recognized by this
Article, other than such restrictions prescribed by law as are necessary in a democratic
society, in the interests of national security, territorial integrity or public safety, for
the prevention of disorder or crime, for the protection of health or morals and of the
reputation or the rights of others, privacy, prevention of contempt of court, protection
of parliamentary privilege, for preventing the disclosure of information communicated
in confidence, or for maintaining the authority and impartiality of the judiciary.

RESTRICTIONS ON FUNDAMENTAL RIGHTS

a. The exercise and operation of the fundamental rights declared and recognised in
above paragraph d (5) and (6) shall be subject only to such restrictions as may be
prescribed by law in the interests of national security. For the purposes of this paragraph
“law” includes regulations made under the law for the time being relating to public
security.

b. The exercise and operation of the fundamental right declared and recognised in above
paragraph e (1) shall be subject to such restrictions as may be prescribed by law in the
interests of racial and religious harmony or in relation to parliamentary privilege, contempt of
court, defamation or incitement to an offence.

c. The exercise and operation of the fundamental right declared and recognised above
paragraph e (2) shall be subject to such restrictions as may be prescribed by law in the
interests of racial and religious harmony.

d. The exercise and operation of the fundamental right declared and recognised above
paragraph e (3) shall be subject to such restrictions as may be prescribed by law in the
interests of racial and religious harmony or national economy.

e. The exercise and operation of the fundamental right declared and recognised by above
paragraph e (6) shall be subject to such restrictions as may be prescribed by law in the
interests of national economy or in relation to
1) the professional, technical, academic, financial and other qualifications
necessary for practising any profession or carrying on any occupation, trade,
business or enterprise and the licensing and disciplinary control of the person
entitled to such fundamental right; and
2)  the carrying on by the State, a State agency or a Public Corporation of any
trade, business, industry, service or enterprise whether to the exclusion, complete or
partial, of citizens or otherwise.

f.  The exercise and operation of the fundamental right declared and recognised by above
paragraph e (8) shall be subject to such restrictions as may be prescribed by law in the
interests of national economy.

g. The exercise and operation of all the fundamental rights declared and recognised by
Articles 12, 13(1), 13(2) and 14 (above para C, D (1) and (2), E in FR) shall be subject to
such restrictions as may be prescribed by law in the interests of national security, public order
and the protection of public health or morality or for the purpose of securing due recognition

17
and respect for the rights and freedoms of others or of meeting the just requirements of the
general welfare of a democratic society. For the purposes of this paragraph “law” includes
regulations made under the law for the time being relating to public security.

h. The exercise and operation of the fundamental rights declared and recognised by
Articles 12(1), 13 and 14 (above para C, D and E in FR) shall, in their application to the
members of the Armed Forces, Police Force and other Forces charged with the maintenance
of public order, be subject to such restrictions as may be prescribed by law in the interests of
the proper discharge of their duties and the maintenance of discipline among them.

INTRODUCTION OF AIR FORCE LAW

The members of the Armed Forces are subjected to two Codes of Law. As ordinary citizens,
they remain subject to the Civil Law, but as Service personnel they are subjected to a purely
military code, which, in the case of the Sri Lanka Air Force is termed "Air Force Law". A
member of the Sri Lanka Air Force who commits a civil offence can be tried by a Civil
Court.

Objectives of Air Force Law

Air Force law, in its disciplinary aspects, has dual objectives:

a. To enable an exact discipline to be enforced by Air Force authority.

b. To ensure that crimes and offences which are to the prejudice of good order and Air
Force discipline, are brought to a more speedy and exemplary punishment.

These two objectives are attained by.

a. Detailing offences which are peculiar to the Service. Eg. Desertion, Absence without
official leave, etc. - Section 103 and 106.
b. By granting powers of arrest so that certain members of the Service can arrest other
members without first obtaining a warrant.
c. By establishing Service Courts of Law:
1) Courts Martial. (A.F.A. S. 45)
2) Summary Courts:
(a) Commander of the Air Force. (A.F.A. S. 40 (1) (b) (ii)
(b) Commanding Officers. (A.F.A. S. 40)
(c) Subordinate Commanders. (A.F.A. S. 41)

ARREST AND CUSTODY

‘Arrest’ means restricting free movements of a person or changing the direction of free
movement by a person who has power or who is in official capacity. When a person is
committing or about to commit a crime anybody can arrest that person but should hand over
to a peace officer (Eg: Police Officer or Grama Niladhari) as soon as possible.

18
Under Air Force Law a warrant is not required to arrest a person subject to Air Force Law by
another Air Force person. Such provisions are given to ensure speedy and exemplary
Disciplinary action within Air Force. For this we should know who the personnel subject to
Air Force Law are. Section 34 and Section 3 of the Air Force Act describe the persons subject
to Air Force Law.

They are;
a. All persons under Regular Air Force.
b. All persons under Regular Reserve Air Force, Volunteer Air Force and Volunteer
Reserve Air Force when under training or under Active Service. Section 35 and 36 of the Air
Force give power to arrest Air Force personnel. According to said provisions; When a person
subject to Air Force Law commits any offence (Air Force offences and offences under other
laws/civil offences) he could be arrested.
c. A Senior Officer can arrest/order into arrest a Junior Officer who commits any
offence.
d. A Junior Officer can arrest/order into arrest a Senior Officer when only he engages in
quarrel, affray and disorder.
e. A Commissioned or Non Commissioned Officer can arrest or order into arrest any
airman who commits any offence.

Under Air Force Law there are two types of arrest which will be described according to the
method of custody. Those are;
a. Open Arrest.
b. Close Arrest.

Under open arrest a person will be confined to a comparatively larger area such as the limits
of the Sri Lanka Air Force Station. There is no escort to guard him. However under close
arrest a person will be kept in a limited area such as a room or a cell. Only airmen are kept in
a cell. There is an escort to guard the person under close arrest. A person under close arrest
can meet only the following personnel;

a. The Escort.
b. A Lawyer.
c. A Doctor.
d. A Religious Priest.

The law applicable to persons under arrest could be found in Regulation 24 of the
Disciplinary Regulations in the Subsidiary Legislation.
The type of arrest could only be changed or the release from arrest could be done by the
Commanding Officer. However any arrest, release or change of arrest of Commissioned
Officers should be informed to the Commander of the Air Force.

AIR FORCE OFFENCES AND EXPLANATION OF THE MORE IMPORTANT

OFFENCES

SECTION 95 - OFFENCES IN RELATION TO THE ENEMY PUNISHABLE WITH

DEATH

19
a. Shamefully abandons or delivers up any fortification, place, post, garrison or guard, or
uses any means to compel or induce any Governor, Commanding Officer, or other person
shamefully to abandon or deliver up any fortification, place, post, garrison, or guard, which it
was the duty of such Governor, Officer, or person to defend, or
b. Shamefully casts away his arms, ammunition, or tools in the presence of the enemy,
or
c. Treacherously holds correspondence with or gives intelligence to the enemy, or
treacherously or without good cause sends a flag of truce to the enemy, or
d. Assists the enemy with arms, ammunition, or supplies, or knowingly harbours or
protects an enemy not being a prisoner, or
e. Having been made a prisoner of war, voluntarily serves with or voluntarily aids the
enemy, or
f. Knowingly does, when on active service, any act calculated to imperil the success of
the air force, or any force co-operating therewith, of any part of the Air Force or of any such
Force, or
g. Treacherously or shamefully causes the capture of destruction by the enemy of any of
Air Force aircraft, or
h. Treacherously gives any false air signal or alters of interferes with any air signal, or
j. When under orders to carry out any warlike operation in the air, treacherously or
shamefully fails to use his utmost exertions to carry such orders into effect.

SECTION 96 - OFFENCES IN RELATION TO THE ENEMY NOT PUNISHABLE WITH

DEATH

a. Without orders from his Superior Officer leaves the ranks in order to secure prisoners
or booty, or on pretence of taking wounded men to the rear, or
b. Without orders from his Superior Officer wilfully destroys or damages any property,
or
c. Is taken prisoner, owing to his failure to take due precaution, or through his
disobedience of orders, or wilfully neglect of duty, or having been taken prisoner fails to
rejoin the Air Force when able to do so, or
d. Without due authority either holds corresponds with or gives intelligence to, of sends
a flag or truce to the enemy, or
e. By word of mouth, or in writing, or by signals, or otherwise spreads reports calculated
to create unnecessary alarm or despondency, or
f. In action, or previously to going into action, uses words calculated to create alarm or
despondency, or
g. Behaves or induces others to behave before the enemy in such manner as to show
cowardice, or
h. Negligently causes the capture of or destruction by the enemy of any of Air Force
aircraft, or
j. When under orders to carry out any warlike operation in the air negligently or through
other default fails to use his utmost exertions to carry such orders into effect.

SECTION 97 - OFFENCES PUNISHABLE MORE SEVERELY ON ACTIVE SERVICE

THAN AT OTHER TIMES

Every person subject to this Act who treacherously makes known the parole, watchword, or
countersign to any person not entitled to receive it, or treacherously gives a parole,

20
watchword, or countersign different from what he received, or without due authority alters or
interferes with any air signal, shall be guilty of an Air Force offence.

a. Leaves the ranks or his post without the orders of his Commanding Officer in order to
go in search of plunder, or
b. Forces any escort or safeguard drawn from the Air Force from an allied
force, or
c. Forces or strides a sentinel of the Air Force or of an allied force, or
d. Breaks into any house or other place in search of plunder, or
e. Being an Airman acting as sentinel, sleeps or is drunk at his post, or
f. Without orders from his Superior Officer, leaves his guard, piquet, patrol or post, or
g. By discharging firearms, making signals, using words, or by any means whatever,
intentionally occasions false alarm, or
h. Being an Airman acting as sentinel, leaves his post before he is properly relieved.

Every person subject to this Act who:

a. By discharging firearms, making signals, using words, or by any means whatever,
negligently occasions false alarm, or
b. Makes known the parole, watchword, or countersign to any person not entitled to
receive it, or, without good any sufficient cause, gives a parole, watchword, or countersign
different from what he received, or
c. Impedes the Provost Marshal or any assistant Provost Marshal or any Officer or NCO
or other person legally exercising authority under or on behalf of the Provost Marshal, or,
when called on, refuses to assist in the execution of his duty the Provost Marshal, assistant
Provost Marshal, or any such Officer or NCO, or other person, or
d. Does violence to any person bringing provisions or supplies to the Air Force or any
part thereof or to any foreign forces co-operating therewith, or commits any offence against
the property or person of any inhabitant of or resident in the country in which he is serving,
or
e. Irregularly detains or appropriates to his own corps, unit or detachment any provisions
or supplies proceeding to any other part of the air force or to any such foreign force as
aforesaid, contrary to any orders issued in that respect.

SECTION 98 - MUTINY AND SEDITION

Mutiny - A mutiny may be defined as a "combination of two or more persons to resist or to

induce others to resist lawful Air Force Authority".

Sedition - Sedition may be defined as "an agitation or speech or conduct directly against the
authority of the State, or speech or conduct or agitation tending to cause a rebellion against
the State".

For a mutiny there should be a combination of two or more persons with a common intent to
resist lawful Air Force authority. Similarly, sedition would require a common intent to resist
the authority of the State.

An Airman cannot commit an act of mutiny by himself, as it takes two or more individuals to
commit an act of mutiny. If, however, an airman joins a mutiny, he is individually liable for
his act of mutiny and could be charged for associating in a mutiny.

21
Mutiny is a very grave offence and a charge of mutiny should only be brought on the clearest
evidence and unless there has been a combination of two or more Airmen to be collectively
insubordinate (under S.100 or 101 of the Air Force Act).

In a trial of Airmen charged with mutiny, care should be taken not to try too many airmen
together as it would complicate the issues which the Court has to try and the defence of the
accused would be made difficult.

Provocation by a superior or a grievance does not justify mutiny or insubordination although

these facts may be considered as mitigating circumstances in the award of punishment.

Under the Air Force Act, it is an offence:

a. To cause a mutiny or conspire to cause mutiny - S. 98 (a).
b. To endeavour to persuade a person to join a mutiny - S. 98 (b).
c. To join a mutiny or being present, not to do one's best to suppress it- S. 98 (c).
d. After coming to know of a mutiny, to fail to inform the Commanding Officer without
delay - S. 98 (d).

Sedition too is a very serious offence and should be only brought on the clearest evidence. If
there is a prima facie case, a summary of evidence should be ordered.

SECTION 99 - STRIKING OR THREATENING A SUPERIOR OFFICER

Striking - Striking means the unlawful use of force to a person by another, where a blow is
struck with the hand, fist or arm or with any object held in the fist or hand.

Using Violence - Using violence includes all forms of violence, other than striking. Kicking
or pushing a superior or throwing an object at him which strikes him, therefore constitutes the
offence of using violence.

Offering Violence - Offering Violence includes any defiant act or gesture, which, if
completed, would end in a blow being struck or actual violence being used, but does not
include insulting or impertinent gestures or acts which would not end in a blow being struck
or violence being used. Eg. An Airman on parade, who throws his weapon or web-belt on
the ground where it is not aimed at a Superior Officer, is not deemed to be offering violence.
An Airman who shakes his fist, or even draws a bayonet, or who, in any other way makes a
show of violence against a superior, is NOT guilty of offering violence if he, at the time, was
behind bars or at such a distance that it would have been impossible for him to strike or throw
anything at the superior. Offering violence would mean throwing a missile or object at a
superior if such missile or object missed the superior. Pointing a loaded revolver at a
superior, who is within range, would also constitute the offence of offering violence.

Using threatening language - Using threatening language means language which contains a
threat, from which a person may reasonably infer that violence may be used. Eg. "I will
punch you on the nose", is threatening language.

Using insubordinate language - Using insubordinate language are words used to show a
defiant attitude towards authority. The words must either in themselves, or in the manner or

22
circumstances in which they are spoken, be insulting or disrespectful, and in all instances
must reasonably appear that such words were intended to be heard by the superior. It is also
an offence when the words themselves are not necessarily discourteous but if their intent is
deliberately to be disrespectful of authority. Eg. An Airman, who having being given a lawful
command, which does not require immediate compliance, indicates very politely that he does
not intend complying with that command, is guilty of insubordinate language.

Further points to be considered.

a. All threatening language is insubordinate, but the converse need not necessarily be so.
In all cases when there is a doubt that words used on a superior contained a threat, the
accused should be charged for using insubordinate language.
b. For all offences specified in this section, the fact of superiority must be proved, and it
must be shown that the accused knew he was being commanded or instructed by someone of
superior rank.
c. When charges are framed under this section, care should be taken to avoid uncertainty
or duplicity. Eg. A charge alleging that the accused "Used or Offered" violence or "Used
threatening or insubordinate" language must not be framed, as it is bad in law. The charge
should be specific.
d. When insubordinate language accompanies the striking of a blow or the using or
offering of violence, the accused need be charged only for striking or using, or offering
violence, and the insubordinate language may be led in evidence to show the manner in
which the offence was committed.
e. S. 99 (I) relates to offences of striking, using or offering violence against a Superior
Officer, while such Superior Officer is performing his Air Force duties; and S. 99 (2) relates
to the same offences against a superior, at any time.
f. Striking, or using or offering violence against a person who is not a superior cannot be
charged under this section of the Air Force Act, but should be charged under S. 129 read in
conjunction with the relevant Sections of the Penal Code.

SECTION 100 - DISOBEDIENCE TO A SUPERIOR OFFICER.

To disobey a lawful command, given orally, in writing, by signal or otherwise, is an offence

if it concerns an Air Force Duty i.e. disobedience must tend to delay or impede an Air Force
proceeding. Moreover, the airman must be given an opportunity of complying with the
command. Eg. If the command is to re-fuel an aircraft within one hour, there is no
disobedience until the one hour has elapsed and the aircraft has not been re-fuelled.

Disobedience must be deliberate, as distinct from arising through forgetfulness or neglect;

and if there is wilful defiance, the accused should be charged under S. 100 (1), and if he
merely disobeys the command action under S. 100 (2) should be taken.

The fact of superiority should be clearly proved, and it must be shown that the accused knew
he was being commanded by a superior. A superior, for this purpose, is anyone placed in
charge of a body of men.

A "Lawful Command" is a command, order or instruction given in pursuance of an Air Force

Duty, and should not be contrary to the Civil Law and should be justified by Air Force Law.
Therefore, wilful defiance of an order, instruction or a request by a superior, given in
pursuance of an Air Force Duty becomes an offence under this section. A superior need not

23
use the words "You are to" to indicate a command required to be carried out. It is sufficient
for a superior to say "Let me have the report by 0800 hours", which, if not complied with,
becomes an offence.

A distinction should be made as to what an Air Force Duty is, and what is not. Eg.
a. Air Force Duty.
(1) To have a haircut.
(2) To obey a traffic signal or instruction given by an Airman on traffic duties
(even if such airman is of inferior rank).
(3) To obey an instruction in respect of Security, Entry into Camp, etc. (even if
such instruction may be given by an airman of inferior rank).

b. Not Air Force Duty.

(1) To sign for pay, when not received.
(2) To perform private tasks for Officers/NCOs.
(3) To undergo illegal punishment.

SECTION 101 - INSUBORDINATION

Insubordination is an Air Force offence where an accused person shows defiance or

disrespect to a superior or to anyone exercising Air Force authority and discipline, where the
accused.
a. Being concerned or involved in a quarrel, affray or disorder and refuse to obey any
Officer (though of inferior rank) who orders him into arrest, or strikes or uses violence to
such person.
b. Strikes, uses or offers violence to any other person, even though he is not subject to
the Air Force Act, in whose custody he is placed regardless of the rank of such person.
c. Resists an escort or a guard whose duty it is to arrest or take charge of him.
d. Being an Airman, breaks out of Camp, Barracks, Quarters or any place which forms a
part of an Air Force establishment.
e. It should be noted that offences for insubordinate language should be charged under
S. 99 (2).

SECTION 102 - NEGLECT TO OBEY GENERAL OR OTHER ORDERS

a. The orders specified in this section are Standing Orders, Local Orders or those that
are operating continuously, but do not include any order published as a Regulation made
under the Air Force Act.
b. It should be emphasized that the orders must be of a standing or permanent nature, as
distinct from temporary orders. A daily routine order need not necessarily be temporary, but
may be of a permanent nature i.e., placing a public house out of bounds, until further notice.
c. It must be shown that the order was brought to the notice of the accused or that it was
circulated in such a manner that he ought to have seen it i.e., a Academy/Base/Station/Unit
Routine Order, an order displayed on a Mess/Station Notice Board, etc.
d. No person should be charged under this section for any disorder or neglect which
constitutes an offence for which provision is made in any other section of the Air Force Act
and which is not a civil offence.

24
SECTION 103 - DESERTION

a. Desertion is absenting oneself from place of work or duty with the specific intention
not to return to the Service. Desertion is always accompanied by absence without leave. The
Court, in order to convict a person for desertion, must be satisfied that there was an intention
to desert - the length of absence does not show intention, but acts like destroying uniform and
obtaining civil employment, or purchasing a one-way air ticket, would suggest an intention to
desert.
b. Attempting to desert, or persuading or attempting another to desert are also offences.
c. Two or more persons cannot be charged jointly with offences of desertion. They must
be charged individually.
d. Under S. 138, a person, who is not subject to the Air Force Act, can be convicted by a
Magistrate, if he is found guilty of persuading or helping an officer or Airman to desert.

SECTION 104 - FRAUDULENT ENLISTMENT

Every person subject to this Act who, when belonging to the Regular Air Force or Regular
Force Reserve and without having obtained a regular discharge there from or otherwise
fulfilled the conditions enabling him to enlist or enrol, enlists or enrols himself in the
Volunteer Air Force or in any naval or military force in Ceylon, who, when belonging to the
Volunteer Air Force or Volunteer Air Force Reserve or to Naval or Military Force of Ceylon
and without having obtained a regular discharge therefrom or otherwise fulfilled the
conditions enabling him to enlist or enrol, enlists or enrols himself in the Regular Air Force,
shall be guilty of the Air Force offence of fraudulent enlistment and shall, on conviction by a
Court Martial, be liable

Where a person has fraudulently enlisted on several occasions he may, for the purpose of this
Section, be deemed to belong to any one or more of the corps to which he has been appointed
or transferred, as well as to the corps to which he properly belongs; and it shall be lawful to
charge such person with any number of offences under this Section at the same time, and to
give evidence of such offences against him, and it he be convicted thereof of punish him
accordingly; and further it shall be lawful on conviction of such a person for two or more
such offences to award him the higher punishment allowed by this section for a second
offence as if he had been convicted by a previous Court Martial of one of such offences.

Where a person is convicted of the offence of fraudulent enlistment, then or the purposes of
his liability under this section to the high punishment for a second offence, the offence of
deserting or attempting to desert the Air Force may be reckoned as a previous offence of
fraudulent enlistment under this section, with the exception that the offence of deserting or
attempting to desert committed by him next before any offence of fraudulent enlistment shall
not upon his conviction of that fraudulent enlistment be reckoned as a previous offence
deserting or attempting to desert.

SECTION 105 - ASSISTANCE OF OR CONNIVANCE AT DESERTION

Every person subject to this Act who:

25
a. Assists any person subject to this Act to desert the Air Force, or
b. Being cognizant of any desertion or intended desertion of a person subject to this act,
does not forthwith give notice to his Commanding Officer, or take any steps in his power to
cause the deserter or intending deserter to be arrested.

SECTION 106 - ABSENCE FROM DUTY WITHOUT LEAVE

a. To charge a person with absence without leave under S. 106 (a), it must be shown that
the absence was voluntary and that no leave had been granted by or on behalf of the
Commanding Officer i.e. that the absence was within the control of the accused.
b. Absence ends when it becomes involuntary i.e. when the accused is apprehended by
the Service or Civil Police, or when he is admitted to a hospital, etc.
c. To charge a person for absence from place of duty under S. 106 (b) requires proof that
the 'accused was under or aware of orders or instructions, to be on duty at a specified place,
at, or during a specified period of time, by Air Force authority.
d. To charge a person under S. 106 (c), the person charging the accused has to prove that
the accused was in fact on duty at the time he was found off-limits. There may be instances
when a charge may not hold under this section, in which case the charge under S. 102 (b),
may be more appropriate.

SECTION 107 - SCANDALOUS CONDUCT OF AN OFFICER

This Section applies to Commissioned Officers only, and involves offences of a social or
Service nature, unbecoming of an Officer and gentleman. Scandalous conduct of a social
nature must be of such a grave nature to show that the Officer is not fit to hold commissioned
rank.

The only punishment for this offence is cashiering.

SECTION 108 - FRAUD BY PERSON IN CHARGE OF PROPERTY

This Section relates to offences of dishonesty on the part of any person in charge of, or
concerned in the care of, or the distribution of any public or Service property.

An offence is committed where he:

a. Dishonestly Mis-applies. Such property i.e. converts to his own personal use, any
movable property.
b. Commits Theft. Definition of theft: Whoever intends to take dishonestly any
movable property out of the possession of another without that person's consent, and moves
that property in order to accomplish such taking is said to commit "theft".

Thus, it will be seen that five factors have to be proved:

a. There must be dishonest intention to take the property.
b. The property must be movable.
c. The property must be taken out of the possession of another, who any not be the
owner, but the lawful possessor at the time. So, a man can commit theft of his own property,
if he unlawfully takes it away from another, who is in lawful possession of it, at that time.
d. It should have been taken without the consent of that person.
e. There must be some removal of the property in order to accomplish the taking of it.

26
Intention - Is an essential ingredient of theft? The intention to take deliberately exists when
the taker intends to cause wrongful gain to one person or wrongful loss to another. The
intention to take must exist at the time of the moving of the property i.e. the taking must be
dishonest. The least removal of the thing taken from the place where it was before is
sufficient to prove theft, even though it might not be quite carried off.

Commits Criminal Breach of Trust: Whoever being in any manner entrusted with any
property, dishonestly misappropriates or converts to his own use that property, or who
dishonestly uses or disposes of that property, violating the conditions or rules or instructions
under which he was given that property in trust, is said to commit criminal breach of trust.

Any person who aids or abets in committing theft, dishonest misapplication of criminal
breach of trust, is also liable to being charged under this Section.

It should be noted that this Section relates to persons subject to the Air Force Act, and who
commits these offences, in respect of Public or Service property only (See para. 15. F. also).

SECTION 109 – DISGRACEFUL CONDUCT

Malingering (S.109 (a)) - Malingering means pretending illness or disability to escape or

avoid service or an Air Force duty. It must be shown that there was intent on the part of the
accused to falsely render him unfit for service or duty.

Feigns Illness (S.109 (a)) - Feigns Illness means pretending to be ill or simulating illness
which, if unchecked by authority, would enable the accused to escape or avoid an Air Force
duty.

Causes in himself a disease or an infirmity (S.109(a)) - Means that the accused, in order to
avoid or escape an Air Force duty, deliberately causes an infirmity or disease to himself.

Willfully maims or injures himself or another (S.109 (b)) - Means that the accused with a
fraudulent intent, injures, maims, cripples or mutilates himself or another, to render himself
or the other person unfit for Air Force service; or whether he causes himself to be maimed,
injured or crippled by any other person, to enable him to become unfit for Air Force service.

Willfully misconduct or willful disobedience to aggravate disease or infirmity or delay

its cure (S.109 (d) - Means that the accused deliberately attempts to aggravate his disease or
infirmity, and/or delays its cure for the purpose of avoiding a Force duty.

Dishonest misapplication or theft or criminal breach of trust (S.109(d)) - These offences

have the same meaning and interpretation as those in S.108, but the difference is that under
this section, the accused commits these offences knowing that such property is stolen
property, or property belonging to an Officer, Airman or a Non-public Fund.

Disgraceful conduct of a fraudulent nature (S.109(e)) - Any act of fraud or deceit, to the
benefit of the one who commits the fraud or deceit, where such act is not specified elsewhere
in the Air Force Act, can be charged under this Section. Fraud, in this context, will refer to
monetary transactions as well as to property belonging to any Officer or Airman or non-
public fund and any non-public property.

27
Disgraceful conduct of a cruel kind (S.109(e) - A person who delights in another's pain
(mental or physical) is said to be cruel. A cruel act also refers to the ill-treatment of any
animal, whether or not the animal belongs to the Air Force. The burning of a servant with a
naked flame as a form of punishment, keeping a subordinate immersed up to the neck in
water for excessive long periods as a form of punishment, the dashing of an animal on a wall,
are examples of cruel acts.

Disgraceful conduct of an indecent kind 9S.109(e)) - Indecent acts include indecent

exposure of person, indecency between adults in public, indecency with children, indecent
assault of women, procurement of women and girls for immoral purposes, etc. When a person
is charged under this subsection, and a prima facie case exists, a Summary of Evidence must
be taken.

Disgraceful conduct of an unnatural kind (S.109(e)) - Unnatural acts will include

voluntary carnal intercourse against the order of nature with any man, woman, child or
animal. When a person is charged under this section, and a prima facie case exists, a
Summary of Evidence must be taken.

SECTION 110- DRUNKENNESS

An Officer or Airman is guilty of drunkenness if, owing to the influence of alcohol, he is

unfit for any duty which he has to do or is called upon to perform, or behaves in a disorderly
manner, to bring discredit to the service.

Drunkenness, whilst not on duty, will normally carry a less severe punishment - but see sub-
paragraph f. below.

Persons shall not be jointly charged with the offence of drunkenness.

A charge of drunkenness is not to be investigated until the accused is sober.

A witness, in evidence shall give his reasons for saying why the accused was drunk. Persons
suspected of being drunk should not be put through any test for drill, for the purpose of
ascertaining his condition. If, however, a doctor has examined him for the purpose of
ascertaining his condition, the doctor may be called in the same way as any other witness to
describe what he saw when the accused was produced before him, and to state in his opinion,
based on what he saw, whether the accused was drunk.

Nothing can justify an Airman striking or offering or using violence to a superior, and
therefore, great care should be taken to avoid bringing drunken persons into contact with
superiors. More abusive and violent language used by an accused as a result of being taken
into custody, when drunk, should not be used as a ground for framing charges of using
insubordinate or threatening language. Where, however, an Airman under the influence of
liquor strikes a superior or has committed any other offence, it is the duty of the officer
preferring the charge to consider, very carefully, according to accused on the more serious
offence(s).

The offence of drunkenness should be dealt with more severely on Active Service, and when
an Officer or Airman is performing duties such as Duty Officer/Duty NCO, Guard
Commander or whilst doing security duties/patrols.

28
When an Officer or Airman, in a state of intoxication, appears in a public place and conducts
himself to the annoyance of any other person, a charge should be framed under S.129, read in
conjunction with S.488 of the Penal Code.

SECTION 111- PERMITTING ESCAPE OF PERSON IN CUSTODY

When in command of a guard, piquet, patrol, or post, releases without proper authority
whether wilfully or otherwise, any person committed to his charge, or

Wilfully or without reason able excuse allows escaping any person who is committed to his
charge, or whom it is his duty to keep or guard,

SECTION 112 - IRREGULAR ARREST OR CONFINEMENT

Unnecessarily detains a person in arrest or confinement without bringing him to trial, or fails
to bring his case before the proper authority for investigation, or

Having committed a person to the custody of any Officer, Non-Commissioned officer,

Provost Marshal, or assistant Provost Marshal, fails without reasonable cause to deliver at the
time of the committal, or as soon as practicable, and in any case within twenty four hours
thereafter, to such Officer, Non-Commissioned Officer, Provost Marshal, or assistant Provost
Marshal an account in writing signed by himself of the offence with which the person so
committed is charged, or

Being in command of a guard and having received any person into his custody, does not as
soon as he is relieved from his guard or duty or, if he. is not sooner relieved, within twenty-
four hours after that person is committed to his custody, give in writing, to the Officer to
whom he may be ordered to report, that person's name and offence so far as known to him,
and the name and rank of the Officer of other person by whom that person was charged,
accompanied, if he has received the written account mentioned in paragraph (b), by that
account.

SECTION 113 - ESCAPE FROM CONFINEMENT

Every person subject to this Act who, being under arrest, or in confinement or prison, or
otherwise in lawful custody, escapes or attempts to escape, shall be guilty of an air force
offence and shall, on conviction by a court martial, be liable, if he is Officer, to be cashiered
or to suffer and less severe punishment in the scale set out in Section 133, and, if he is an
Airman, to suffer simple or rigorous imprisonment for a term not exceeding three years or
any less severe punishment in the scale set out in Section 133.

SECTION 114 - CORRUPT DEALINGS IN RESPECT OF SUPPLIES TO THE AIR

FORCE

Anyone subject to the Air Force Act who accepts a bribe, reward, fee, consideration or any
other advantage from anyone in respect of purchases of supplies, provisions, foods,
equipment or other merchandise shall be guilty of an offence under this Section.

29
If an offence cannot be specifically identified and charged under this section, a charge should
then be framed under S.129 road in conjunction with S.158 of the Penal Code.

SECTION 115 - DEFICIENCY IN AND INJURY TO EQUIPMENT

Pawning, selling or destroying -

a. A person who pawns, sells, destroys, or who aids and abets a person who commits
these offences is guilty of an offence under S.115 (a).
b. It is important to prove that the property etc. was issued or entrusted to the accused
either for Air Force purposes or for his own official use.
c. The following types of persons could be charged with offences under this section if
they lost public property:
d. An Equipment Officer or NCO in respect of stores as he would “have the charge" of
them.
e. An Imprest Holder because he would "have the charge" of the money.
f. A driver of a Service vehicle in respect of the tools and spare parts on the vehicle
which he took over because they had been "entrusted to his care".
g. A Mess Caterer who lost bar stocks, because it had been "entrusted to his care".
h. The occupant of a married quarter if he lost any inventory item, or sells or pawns such
item.

Making away with - Again it is important to prove that the property etc. was issued or
entrusted to the accused either for Air Force purposes or for his own official use. Before a
charge is framed for "making away with", under this section, consideration must be given to
the question whether a charge of stealing or fraudulent misapplication (S. 108) should be
preferred, in view of the heavier penalty for stealing or fraudulent misapplication.

Lose by neglect –
a. A person who loses any property etc. by neglect is liable to be charged under S. 115
(b).
b. Neglect always consists of a failure by a person to discharge a duty which is imposed
upon him in some way. To ascertain if there was neglect or not, three questions must be
answered, viz.
(1) What duty, if any, was imposed on him?
(2) If a duty was imposed, did he fail to discharge that duty?
(3) If he failed to discharge that duty, do the surrounding circumstances excuse or
aggravate his failure?
(4) The degree of blameworthiness will depend on the answers to (2) (a) and (c)
above, and will invariably differ from case to case.

Offences relating to Air Force decorations - Offences in relation to the sale, pawning,
destroying or making away with any Air Force decorations or medal, can be charged under S.
115 (c).

Willfully injures or damages property –

30
a. A person who wilfully injures or damages any property specified in S. 115 (a), or, any
property belonging to a member of the Air Force or to any Non-Public fund, mess or
institution should be charged under S. 115 (b).
b. The injury or damage sustained must be the direct consequence of a wrongful act or
wilful negligence.
c. Ill-treating any animal used in the Air Force. A person who fails to take proper care
of any animal belonging to or used by the Air Force should be charged under S. 115 (e).

Section 115 (2) - Section 115 (2) of the Air Force Act deals with offences relating to aircraft.
The term "neglect" under S. 115 (2) (a), means a breach of duty to take care, or in other
words carelessness in a matter where carefulness is demanded. The duty to take care will
vary according to the operation or task to be performed. For instance the personnel handling
the aircraft would be required to take more care than a person pushing a wheelbarrow.

SECTION 116 - FALSIFYING OFFICIAL DOCUMENTS; AND FALSE

DECLARATIONS

Making a false statement in any Service document S. 116 (a) (1) - An alteration to a
Service document which would make the document false in its material or meaning should
also be charged under this Section. It must be proved, therefore, that the accused did
knowingly make a false statement.

Making a fraudulent statement S. 116 (a) (1) - A statement made with intention to deceive
or defraud should be charged under this Section.

Making a fraudulent omission S. 116 (a) (2) - A person who omits to include material or
words in a document, knowing that such omission would result in a fraud, should be charged
under this Section.

Suppressing, defacing, altering or making away with a document that should be

preserved S. 116 (b) - It should be proved that it was the duty of the accused to preserve the
document or produce it when required.

Making a false declaration in respect of any matter which it is his official duty to make
S. 116 (c) - The declaration required would necessarily have to be in pursuance of an Air
Force function, Air Force discipline or an Air Force administrative matter.

A mere error through carelessness should not be charged under this Section.

Charges under this section usually arise in cases involving discipline or money transactions
where documents have been deliberately altered or incorrectly compiled to cover up breaches
of Service regulations, or duties.

SECTION 117 - NEGLECT TO REPORT, AND SIGNING IN BLANK

An accusation made need not be made to any particular person or in any particular manner.

An Officer or Airman, in seeking a redress of grievance under the provisions of the Air Force
Act, who makes a false statement affecting the character of any other person subject to the

31
Air Force Act, or knowingly and wilfully suppresses any material facts is guilty of an offence
under this Section.

SECTION 119 - OFFENCES IN RELATION TO COURTS-MARTIAL

Being duly summoned to attend as a witness before a court martial, makes default in
attending.

Refuses to take an oath or make an affirmation lawfully required by a Court Martial to taken
or made, or

Refuses to produce any document in his power or control lawfully required by a Court
Martial to be produced by him, or

Refuses when a witness to answer any question to which a Court Martial lawfully require as
answer, or

Commits contempt of a court martial by using insulting or threatening language, or by

causing any interruption or disturbance in the proceedings of such Court Martial.

Provided that where a person subject to this Act is guilty of contempt of a Court Martial by
using insulting or treating language, or by causing any interruption or disturbance in the
proceeding of such Court Martial such Court Martial may, instead of causing him to be tried
by another court martial sentence him to simple or rigorous imprisonment, or, if he is an
Airman, to detention, for a term not exceeding twenty-one days.
32
SECTION 120 - FALSE EVIDENCE

Evidence of all witnesses at Courts Martial or Summary Trials (Commander, Commanding

Officers and Subordinate Commanders) are to be taken on oath or affirmation.

Sections 40 and 41 of the Air Force Act give the Commander, Commanding Officers and
Subordinate Commanders powers of punishment. As such, they are "officers authorized by
the Air Force Act and must frame charge against any witnesses those who give false
evidence under oath or affirmation at their summary trials.

The rules in the Evidence Ordinance shall be applicable at trials held in respect of persons
subject to the Air Force Act.

The offence of "false evidence" is similar to the civil offence of "perjury". The offence is
committed when a person who is lawfully sworn or affirmed as a witness, wilfully makes a
statement material in that proceeding which he knows to be false or does not believe to be
true.

32
SECTION 121 - ENLISTMENT OF AIRMEN, SAILOR OR SOLDIER DISCHARGED
WITH DISGRACE

Every person subject to this Act who having been dismissed with disgrace from the Air Force
or from any naval or military force of Ceylon, has afterwards enlisted in the Air Force
without declaring the circumstance of his dismissal, shall be guilty of an Air Force offence
and shall, on conviction by a Court Martial, be liable to suffer simple or rigorous
imprisonment for a term not exceeding three years or any less severe punishment in the scale
set out in Section 133.

For the purpose of this Section, the expression “dismissed with disgrace” means dismissed
for misconduct or on account of conviction of an offence for which a sentence of
imprisonment is passed.

SECTION 122 - FALSE ANSWERS ON ENLISTMENT

Every person subject to this Act who, when enlisted as an Airman, has wilfully made a false
answer to any question set out in the attestation paper signed by him, shall be guilty of an Air
Force offence and shall, on conviction by a Court Martial, be liable to suffer
simple or rigorous imprisonment for a term not exceeding three years or any less severe
punishment in the scale set out in Section 133.

SECTION 123 - GENERAL OFFENCES IN RELATION TO ENLISTMENT

Is concerned in the enlistment of any other person in the Air Force, when he knows or has
reasonable cause to believe that such other person by enlisting commits an offence, or

Wilfully contravenes any provision of law relating to the enlistment of Airmen,

SECTION 124 - TRAITOROUS WORDS

Every person subject to this Act who uses traitorous or disloyal words regarding the
Sovereign shall be guilty of an Air Force offence and shall, on conviction by a Court Martial,
be liable, if he is an Officer, to be cashiered or to suffer any less severe punishment in the
scale set out in Section, and, if he is an Airman, to suffer simple or rigorous imprisonment for
a term not exceeding three years or any less severe punishment in the scale set out in Section
133.

SECTION 125 - INJURIOUS DISCLOSURES

Every person subject to this Act who, orally or in writing, or by signal or otherwise, discloses
the numbers or position of any forces in Ceylon, or any magazines or stock of such forces, or
any preparations for, or orders relating to, operations or movements of such forces, at such
time and in such manner as, to have produced affects injurious to such forces shall be guilty
of an air force offence and shall, on conviction by a Court Martial, be liable, if he is an
Officer, to be cashiered or to suffer any less severe punishment in the scale set out in Section
133, and, if he is an Airman, to suffer simple or rigorous imprisonment for a term not
exceeding three years or any less severe punishment in the scale set out in Section 133.

33
SECTION 126 - ILL-TREATING AIRMEN

This Section applies to Officers, Warrant Officers and Non Commissioned Officers only.

It should be shown that the accused knew or ought to have known that the victim was of
inferior rank or less seniority.

Ill-treating means that a person ill-treats in any way, other than by striking.

SECTION 127 - DUELLING AND ATTEMPTING TO COMMIT SUICIDE

The offences under this section are,

a. Fighting.
b. Promotes a Fight.
c. Is involved or concerned in a fight.
d. Connives at fighting.
e. Duelling.
f. Attempting to commit suicide.

The offences at a. (1), (2), (3) and (4) above would apply to those persons involved, who are
of the same or equivalent rank.

An Officer or Airman who fights, promotes a fight or is concerned in a fight with a person
not subject to the Air Force Act could also be charged under this Section.
35
SECTION 128 - REFUSAL TO DELIVER TO CIVIL COURT OFFICERS AND AIRMEN
ACCUSED OF CIVIL OFFENCES

Every person subject to this Act who, on application being made to him, neglects or refuses
to deliver to a civil court, or to assist in the lawful arrest of, any Officer or Airman accused of
an offence punishable by a civil court, shall be guilty of an Air Force offence and shall, on
conviction by a Court Martial, be liable, if he is an Officer, to be cashiered or to suffer any
less severe punishment in the scale set out in Section 133, and, if he is an Airman, to suffer
simple or rigorous imprisonment for a term not exceeding three years or any less severe
punishment in the scale set out in Section 133.

SECTION 129 - CONDUCT PREJUDICIAL TO AIR FORCE DISCIPLINE

It must be remembered that any act, conduct, disorder, or neglect which amounts to an
offence against Sections 98 to 128 should be charged under whichever of those sections that
is appropriate. An offence should not be charged under this section merely to enable a
Commanding Officer to deal with the case.

For offences under this section the court must answer.

a. Was the accused guilty of the act? If so,
b. Was the act prejudicial to good order and Air Force discipline?

34
Good Order - As used in this Section, these words have the same wide meaning as would be
understood in civil life. Conduct to the prejudice of good order is not necessarily conduct
prejudicial to Air Force discipline. On the other hand, conduct which is prejudicial to Air
Force discipline is also prejudicial to good order in the Air Force.

Air Force discipline - It is the duty of all ranks to uphold the reputation of the Air Force.
Any act, conduct, disorder or neglect therefore which amounts to a failure in that duty by an
individual, may well prejudice Air Force discipline, although it has no direct bearing on the
discipline of the Unit to which the offender belongs.

Before an accused can be convicted of an offence under this section the court must not only
be satisfied that the accused was guilty of the act, conduct or neglect alleged in the
particulars but that the act, conduct or neglect of which the accused is guilty was to the
prejudice of both good order and Air Force discipline. Even if all the allegations in the
particulars are proved the court must acquit if it is not satisfied on this last matter. In this
connection it should be noted that the words "to the prejudice of", etc. which means that the
prosecution do not have to show that good order and Air Force discipline were actually
affected, but only that the act, conduct or neglect of which the accused is guilty was
calculated to prejudice good order and Air Force discipline.

SECTION 130 - ILLEGAL GRATIFICATION IN CONNECTION WITH APPOINTMENT

OR PROMOTION

Every person subject to this Act who gives or receives, or aids the giving or receiving of, any
valuable consideration in respect of any appointment of promotion in or retirement from the
Air Force, or any employment therein, shall be guilty of an Air Force offence and shall, on
conviction by a Court Martial, be liable to dismissed from the Air Force.

PRINCIPLE OF INVESTIGATION

After an Air Force person is taken into Air Force custody the Investigation Regulations come
into effect. These Regulations specify the process after an arrest and the process prior to
disposing a charge.

As per Regulation 2 (1) where a person subject to the Act is taken into Air Force custody, the
Commanding Officer of that person should investigate the charge within forty-eight hours
after the arrest is reported to him ( Unless investigation within that period seems to him to be
impracticable having regard to the exigencies of the service).

As per Regulation 2 (2) where a person is detained in custody for a period exceeding forty-
eight hours, his Commanding Officer should report the fact to the Commander of the Air
Force (He will extend the period when it is required).

Every charge against should be heard in the presence of the accused. The accused has the
right to cross-examine any person giving evidence against him. He can call any witnesses and
make any statement in his defence. The accused himself can give evidence and he can on
application, call his wife as a witness. (Regulation 3 (1)).

35
The accused can demand to take evidence against him on oath or affirmation. (Regulation
3(2)).

As per Regulation 4 (1) the Commanding Officer can dismiss a charge brought against a
person under his command if, in his opinion, the evidence does not disclose that an offence
under the Act has been committed. He can dismiss a charge in his discretion if he thinks that
the charge should not be proceeded with. (He can decide on this even if there is prima facie
evidence).

As per Regulation 4 (2), at the conclusion of the investigation of a charge against a person
under his command, if the Commanding Officer is of the opining that the charge should be
proceeded with, he shall, without unnecessary delay
a. refer to convene a Court Martial for the trial of that person;
b. adjourn the case for the purpose of having the evidence reduced to writing
(This could be a Summary of Evidence or Abstract of Evidence); or
c. if the matter is regarding a Warrant Officer or a Commissioned Officer refer
the case to be dealt with summarily as directed by section 40 (1) (b) (ii) of the Act ;
d. deal summarily with the case:

A Summary of Evidence must be taken or the evidence for and against accused should be
written down in front of the accused by the Commanding Officer or an Officer appointed by
him in that behalf on the following circumstances.(Regulations 5 (i) to (iii)).
a. If the maximum punishment for the offence is ‘death’.
b. If accused request in writing.
c. If Commanding Officer decides.

When a Summary of Evidence is taken following rules should be applied (Regulation 6 of

Investigation Regulations).
a. The Commanding Officer or the Officer appointed should take down the
evidence in writing.
b. The accused should be present throughout.
c. All the witnesses must take oath or affirmation before giving evidence.
d. All the witnesses against accused should be called to give evidence first.
e. The Officer taking the summary of evidence cannot ask question from the
witnesses.

The accused can cross examine the witnesses against him. Accused should be given a chance
to cross examine and the questions raised and answers given should also be written down.
Both of them should sign after the written question and the answer as applicable.
After taking down the evidence it should be read over to the witness and should get his
signature or a mark. Then the officer taking down the evidence should witness it.

After the evidence against the accused is taken down the accused should be cautioned as
follows;

“Do you wish to make any statement or to give evidence upon oath? You are not obliged say
anything or give evidence unless you wish to do so, but whatever you say or any evidence
you give will be taken down in writing and may be given in evidence”

36
If the accused wish to give evidence it should be taken down in writing and if he refuses to
give evidence that also be written down.

After that the evidence for accused or any other relevant person should be taken down.

The ‘Abstract of Evidence’ means the statements or a précis of the statements of witnesses
who gave evidence before the Commanding Officer (Regulation 7).

An Officer or a Warrant Officer has a right to obtain a copy of the Summary of Evidence or
the Abstract of Evidence together with the charge sheet not less than 24 hours before the
Summary Trial (Regulation 10).

SUMMARY OF EVIDENCE OR ABSTRACT OF EVIDENCE

When a Commanding Officer feels that the evidence given orally before him disclose a prima
facie case for trial by Court Martial, he is to adjourn the case for a summary or abstract of
evidence to be taken (Inv. Regs. S. 4 (2) and S. 5).

Summary of Evidence - A Summary of Evidence is written record taken on oath of all the
evidence against the accused and if he wishes, of the evidence in his favour.

Abstract of Evidence - An Abstract of Evidence is a precise of the statement of witness (not

taken on oath) who gave evidence before the Commanding Officer and of any other evidence
thought necessary (Inv. Regs. S. 7.).

Purpose - The main purpose of a Summary or Abstract of Evidence is;

a. To enable the Commanding Officer to determine whether there is a prima facie case
against the accused for trial by Court Martial and if so to decide the charges that
should be preferred.
b. To inform the convening officer of the nature of the case and assist him in deciding
whether a General or District Court Martial should be convened.
c. To enable the accused;
1) To know the charges against him and the names of the persons
preferring the charges.
2) To prepare his defence.

d. To supply Prosecutor a “brief” from which he may examine witnesses and if

necessary make his opening address.
e. To enable the President to see the nature of the case that has to be tried and to
check any inconsistency between the evidence given at the taking of the summary and that
given at the trial.

When to be Taken - A Summary of Evidence as opposed to an Abstract of Evidence is

always to be taken.
a. If the maximum punishment for the offence is death.
b. If the Commanding Officer feels it desirable because of the nature of the evidence
or in the interests of justice.

37
c. If the accused has asked in writing for a Summary of Evidence to be
taken.

By whom Taken - The Commanding Officer may take the summary or abstract of evidence
himself or detail another Officer to do so.

Evidence on Oath - The evidence for both prosecution and defence at the taking of the
Summary of Evidence is to be taken on oath. The accused may, however, make an un-sworn
statement (Inv. Regs. S. 6. (3) and (4)).

Explanation of The Accused - The Officer taking the summary is to explain to the accused.
a. That Summary of Evidence is to be taken against him.
b. That at the moment the charge(s) against him is / are ……(Read Charge(s)).
c. That after the Summary of Evidence has been considered, charges may be added or
altered or that the case may be dismissed.
d. That the evidence will be taken on oath (Inv. Regs. S. 6 (4).
e. That he has the right to cross – examine each witness who gives evidence against
him (Inv. Regs. S. 6(2)).
f. That he is not bound to make a statement or give evidence himself but that after
the witnesses for the prosecution have given their evidence, he will be cautioned and he
may then make a statement not on oath or give evidence on oath (Inv. Regs. S. 6(3)).
g. That he may call witnesses in his defence, whose evidence will be recorded in a
similar manner to the Summary of Evidence.
h. That he cannot claim to be represented by a defending officer or counsel at the
taking of the Summary of Evidence.

Accused to be present during taking of summary - The accused must be present

throughout the proceedings. A Summary of Evidence cannot be taken in the absence of the
accused.

Attendance of witness - The personal attendance of witnesses who are not readily available
may be dispensed within the circumstances given in Inv. Regs. S. 5. The accused, however, is
entitled to demand the presence of the witness for cross-examination. A statement of the
witness, duly signed, may be read to the accused and included in the Summary of Evidence.

Witnesses only to be present when giving evidence - No witness other than whose evidence
is being recorded is to be in the room during the taking of the summary.

Evidence of witnesses for prosecution - The examination of witnesses for the prosecution is
to be conducted as follows:
a. The first witness is called and after the witnesses has taken his oath; he is to be asked
to give his number, rank, name, (surname) which is to be recorded in block capitals. The
witness is then to give a description of his duties and relate his evidence in the first person in
narrative form and in chronological order if possible.
b. The accused is then to be asked if he wishes to question the witness, if so, record,
“cross-examined by the accused” and follow with the “questions” and answers recorded
as such. If the accused declines to cross examine, record the fact as follows, “the
accused declines to cross examine witness”.
c. When the witness has completed his evidence and has been questioned, the record
of the evidence and the questions and answers are to be read over to him. If the witness

38
disagrees with the record, no alternation should be made, but the following added “on
his evidence being read over to him the witness to make the following alternations
/additions “.
d. The witness is to sign the record of evidence and cross examination immediately
below the last answer recorded. All witnesses for the prosecution are to be examined in this
manner.

Caution to the accused

a. When the evidence for the Prosecution is complete, the accused is to be cautioned
as follows in accordance with Inv. Regs. S.6 (3):- “do you wish to make any statement or
to give evidence upon oath? You are not obliged to make a statement or give evidence upon
oath unless you wish to do so, but, whatever you say or any evidence you give will be
taken down in writing and may be given in evidence”.
b. The fact that the accused has been warned is to be recorded, viz. “The accused is
warned in accordance with Inv. Regs. S. 6(3).
c. The Officer taking the summary is not to give any advice if the accused after being
cautioned, asks for advice as to what he should do, for at the trial any statement made on
such advice might be challenged as not being a voluntary or a confession.
d. If the accused makes a statement, he is not to be questioned on it (Inv. Regs. S. 6(3)).

Evidence of witnesses for defence - After cautioning, the accused is to be asked if he wishes
to call any witnesses. The witnesses should be examined and their evidence recorded in the
same way as witnesses for prosecution (Inv. Regs. S. 6(4)).

Certificate at the end of the summary - The Officer taking the Summary of Evidence must
complete the proceedings with the certificate shown below and sign the certificate:

“Certified that Reg.6 (3) of the A.F. Inv. Regs. has been complied with. This
Summary of Evidence consisting of ……………… pages was taken by me at …………… in
the presence and hearing of the accused on ………… day(s) of ……………………………..
19 …………”

ORDERLY ROOM PROCEDURE

Orderly Room is the place where the Summery Trials are being disposed by the Disposing
Officer. The Disposing Officer should remember not to find him guilty, in his own mind
until he is satisfied beyond all reasonable doubt that admissible evidence proves the charge
against the accused, and that the accused is morally guilty.

The Adjutant must make available the following

a. To produce the F.252 and F.121.
b. To have available a Bible for the taking oaths.
c. To make available Air Force Act and the applicable regulations made there under and
any other legislative enactments if any.
d. The Conduct Sheet of the accused, in a closed envelope.

39
When the F.252 is sent to the Disposing Officer, it is his duty to see that the charge is
correctly framed and that the witnesses are available.

The commencement - Satisfy yourself on the following matters:

a. All relevant documents and publications are at hand.
b. The charges are correctly framed.
c. The meaning of the relevant section of the Act and what evidence is required to prove
the charge.
d. Whether you have power to dispose of the charge (Even if you do not have the power
to dispose of the charge you must still hear the charge).

Commissioned Officers and civilian witnesses are requested to come in before the accused
and other service witnesses. The escort is to march in, behind the accused and march out
behind him. The adjutant is left to the CO, (the Sub. Comm. to the CO’s right, the accused is
to the right facing CO, the escort in the centre, and the witnesses to the CO’s left, all facing
the desk).

Charge - Read out the particulars of the accused, the charge and witnesses.

Several charges - If there is more than one charge, then each should be dealt with separately
unless the evidence is such that it concerns them all, in which case they can be considered
together.

Several witnesses - If there is more than one witness, then the order in which they are called
rests with the CO. He should try to hear the evidence in a chronological order, but as CO
does not know the nature of the evidence, usually take them in the order shown on the Form
252.

Several accused persons - If there is more than one accused then they must all be present
when evidence is being given. They must all individually be given the opportunity of cross
examining each witness.

Identification of witnesses - Each witness should be inquired to confirm the accuracy of his
personal details.

Taking evidence on oath - CO has to direct that the evidence be taken on Oath/Affirmation.
All witnesses must be sworn/affirmed before they commence to give their evidence, with the
exception of the accused, who retains his option to make a statement or say nothing if he
thinks that best.

Plea of guilty or not guilty - CO should NOT ask the accused whether he pleads guilty or
not guilty. It is his duty to investigate the charge, and come to conclusion.

Animation of witnesses - All the witnesses apart from the first are marched out. Then
affirm/swear the witness, in the appropriate manner. CO then asks the witness to give his
evidence, preventing all hearsay and other inadmissible evidence. He can, if necessary,
interrupt the witness and inform him that such a point in his evidence is inadmissible and that
therefore disregarding it. There is no objection to jotting down notes.

40
Cross examination - When the witness has finished giving his evidence, CO asks the
accused whether he wishes to cross-examine the witness. It is essential that he retains control
of the proceedings; without an argument occur between the witness and the accused. You
may ask the witness any questions that may clear up ambiguities or doubtful statements
which have been made. But you are not there to prosecute, and should, therefore, only
attempt to clarify something a witness has already said, or which may assist the accused to
present his case more clearly.

Withdrawal of witness - If there are no more questions to be asked by the accused or by CO,
the witness withdraws.

Hearing of other witnesses - CO proceeds as above, until all witnesses against the accused
have given their evidence.

Documentary evidence - Whenever possible a witness must attend and give evidence in
person. If the exigencies of the service prevent this, or for some other good reason it is not
possible to obtain the presence of the witness, then that evidence may be given in writing and
read over to the accused does not want the witness for cross-examination.

Recalling of witness - If you, or the accused wish to have a witness recalled, after
giving evidence, so that either of you may ask further questions or clarify some points made
earlier in his evidence, the witness may be recalled. He must be warned as to his previous
oath or affirmation.

Evidence by accused - After all the witnesses against the accused have given their evidence,
he must be asked for his defence. If it is likely that the case will go for trial by Court Martial,
then the accused must be warned. Normally he is warned as shown opposite.

Defence witnesses - The accused is then given the opportunity of calling witnesses on his
behalf. (Defence witnesses are also to be sworn/affirmed).

Remanding the case - Before proceeding further, or at any time, CO may remand the case.
He must announce his decisions to remand the case in open court with the accused present.

Consideration of evidence - After hearing all the evidence for and against the accused he
must consider his verdict, and if applicable, arrive at a suitable punishment.

Finding of not guilty - Advise the accused of the finding.

Advice as to future conduct - If the conduct of the accused has not been all that it might
have been, then there is nothing to prevent warning him as to his future behaviour. But this
should be done after he has been marched out and the orderly room is finished. He should
then be marched back into the office, with his hat on and suitably reproved.

Finding of guilty or remanding the case to higher authority - If CO intends to remand the
case to higher authority, must advise the accused in open court. CO must be careful to refrain
from any suggestion or opinion as to the guilt of the accused. When remanding the case to
higher authority or on disposal of the case, the reverse of the F.252 must be completed,
giving briefly, the reasons for remanding it to higher authority or the reasons for acquittal or
conviction.

41
Option of trial by court martial - Where the finding involves loss of pay, then the accused
must be given the right to trial by Court Martial. Remember that in absence without leave
and certain other cases, a finding of guilty is sufficient to make this option necessary.

Trial by court martial - If the accused elects, decide to apply for trial by Court Martial.

Announcement of punishment - If when CO has finished hearing the charge, and found the
accused guilty and have punished him, he should satisfy that:
a. CO has followed closely all the procedure.
b. Has given the accused all the help you probably could.
c. Has weighed up the case as carefully as possible.
d. Has awarded a fair punishment.

COURT MARTIAL

Two types of service courts can be established under the Air Force Act. They are
a. Courts Martial.
b. Summary Trials.

If the offence is severe and the authorities are of the view that the particular matter to be
heard before a Court Martial instead of a Summary Trial or the accused has opted that his
matter to be heard by Court Martial, Court Martial is convened by the relevant authority.

Types of court martial - There are three types of Courts Martial and the Convening Officer
will decide the type appropriate for the seriousness of the offence to be tried and the rank of
the person facing trial.

GENERAL COURT MARTIAL

A General Court Martial has to be convened by the President of Sri Lanka or an officer not
below the rank of Squadron Leader for the trial of all Officers and other ranks who have
committed serious offences. The composition of the Court is to be as follows:

a. A minimum of five members, including the President of the Court Martial, it is

convened to try a person subject to the Air Force Act for an offence of treason, murder or
rape (A.F.A. S.46 (2) (a).
b. A minimum of three members, including the President of the Court Martial, when it is
convened to try a person for any other offence (A.F.A.S.46 (2) (b)).
c. The President shall not be below the rank of Squadron Leader (A.F.A.S.46 (4))
(C.M.Regs.S.8 (1)).
d. An officers of a rank below that of flight Lieutenant shall not be a member of a
General Court Martial convened to try an Officer of the rank of Squadron Leader and above.
(A.F.A.S.46(3)).
e. In the case of the trial of an Officer, the members of the Court should be at least of
equivalent rank of that of the accused Officer and if this is not possible, other Officers may
sit, provided that no Officer below the rank of Flight Lieutenant shall be a member of a Court
trying a Squadron Leader or above (A.F.A. S.46 (4) and C.M. Regs. S.8 (2)).

42
f. If an accused belongs to the Volunteer Air Force, at least one member should, as far
as possible, belong to the same Unit as the accused (C.M. Regs. S.7 (2)).
g. The authority convening a General Court Martial must appoint a Judge Advocate
(A.F.A. S.53 (1) of C.M. Regs. S.20 (3)).

The Jurisdiction of A General Court Martial

A General Court Martial may try any person subject to the Air Force Act who is charged with
any Air Force or Civil offence, provided that the Court Martial shall not try a person subject
to the Air Force Act for the offences of treason, murder, or rape unless such person was on
active service at the time he committed such offence.

Punishments

GCM may inflict any punishments authorized by the Act. In case of Warrant Officer either in
addition to or without any other punishment/punishments under Sec 133 of the Air Force Act.
In case of NCO either in addition to without any other punishment forfeiture of seniority of
rank or reduction to Airman.

GCM shall not pass death sentence on any person without the concurrence of at least two-
thirds of the members.

DISTRICT COURT MARTIAL

A District Court Martial is convened for the trial of all ranks except officers where the
seriousness of the charge does not demand a General Court Martial. The composition of the
Court will be as follows:
a. A minimum of three members, inclusive of the President (A.F.A. S.50 (1)).
b. The President should be of the rank not below that of a Squadron Leader unless
exigencies of the Service requires it otherwise (A.F.A. S.50 (2)).
c. A Judge Advocate may be appointed if it is thought advisable by the Convening
Authority (A.F.A. S.53 (3)).

Punishments

Any punishment other than death which a GCM is empowered to inflict provided however
DCM shall not sentence a Warrant Officer to any punishment other than the following.
a. Severe reprimand or a reprimand.
b. Forfeiture of seniority of rank.
c. Such deduction from his pay as is authorized by this Act.
d. Dismissal from the Air Force.
e. Reduction to the rank of Airman.

FIELD GENERAL COURT MARTIAL

This type of Court Martial is only convened under active service conditions or on Foreign
Service (A.F.A. S.48 and S.49)).

43
Punishments

Same as punishments which GCM empowered to inflict;

a. Provided however that if FGM consists less than 03 Officers shall not have power to
inflict any punishment more severe than imprisonment or detention.
b. FGM shall not pass sentence of death on any person without the concurrence of all the
members thereof

Eligibility to serve as the president or a member of courts martial

a. For General Courts Martial at least three years commissioned service.
b. For District Courts Martial at least two years commissioned service.
c. For Field General Court Martial normally at least three years commissioned service
provided, however, that the Convening Officer is satisfied that such Officers are not available
and may appoint an Officer who has held commission for at least one year.

Convening authority

The General and District courts Martial shall be convened by the Commander of the Air
Force on behalf of His Excellency the President (A.F.A.S.46(1) and S.50(1)). The Field
General Courts Martial shall be convened by the Commanding Officer thereof.

Disqualification to sit as a member of CM

a. The Prosecutor.
b. Any witness for the prosecution.
c. CO of the Accused.
d. The officer who investigated the charge.

Judge advocate - Convening authority may appoint a person who has sufficient knowledge
of the practice and procedures of CM and of the general principles of law and of rules of
evidence as a Judge Advocate. A person who is disqualified to sit as a member of CM shall
not be appointed as a Judge Advocate.

Powers & Duties of Judge Advocate

a. To give advice to the prosecution and to the accused.
b. To invite the attention of the Court to any irregularity in the proceedings.
c. To ensure the accused shall not suffer any disadvantage in consequence of any
incapacity of the accused.
d. Sum up the evidence and advice the CM upon the law.

Oath and affirmation - All members JAG and witnesses shall take the prescribed oath
before the proceedings.

Time limit - Where 03 yrs have lapsed after commission of any offence the accused shall not
be tried by CM unless it is an offence of mutiny, desertion or fraudulent enlistment.

Objections by accused to members of CM - An accused may object to any member for any
reasonable causes. But accused cannot object to the prosecutor or to the Judge Advocate.

44
Confirming authority - The authorities who shall have power to convene a CM have power
to confirm the sentence of a case.

Powers of confirming authority in regard to the sentence

a. Mitigate the punishment to a less amount of the same punishment.
b. Remit the whole or a part of the punishment.
c. Commute the punishment to a different form of punishment lower in the scale of
punishments authorized by the Act.
d. Suspend the sentence.

Commencement of the sentence- A term of imprisonment or detention to which a person is

sentenced by a CM shall be reckoned from the date on which the original sentence was
signed by the President.

Evidence - Rules of evidence to be adopted in proceedings before a CM shall be the same as

those followed in civil courts.

Appeal (sec 140 – CM Regs) - A person aggrieved by the decision of a CM may appeal by
way of a petition to the Convening Authority or by way of a writ to the Court of Appeal.

POWER OF PUNISHMENTS

As we all know there are Courts such as Magistrate’s Courts, District Courts, High Courts,
Commercial High Court, Courts of Appeal, Supreme Court to administer justice in the
country. The courts which handle criminal matters are given power to punish and civil courts
have been given power to grant remedies and to award punishments in failing to enforce such
remedies.

In SLAF also there is a set of service courts which have been given power to award
punishments. The main two types of Courts are as follows;
a. Courts Martial (General/Field General/District).
b. Summary Courts.

POWER OF PUNISHMENTS OF COURTS MARTIAL (GENERAL/FIELD

GENERAL/DISTRICT)

Power of punishment of Courts Martial is given in the Air Force Act under respective
jurisdictions and under Air Force offences. Further the scale of punishment of the Courts
Martial is given in the Section 133 of the Air Force Act. Further special provisions regarding
punishments are given in Section 134 of the Air Force Act.

Under Section 133(1) of the Air Force Act the punishments which could be awarded to an
Officer by a Courts Martial are as follows;
a. Death (Only in General and Field General Court Martial).
b. Rigorous imprisonment.
c. Simple imprisonment.
d. Cashiering.

45
e. Dismissal from the Air Force.
f. Forfeiture of seniority or rank in Air Force/corps/both and for Officers forfeiture of
service for the purpose of promotion.
g. Severe reprimand.
h. Reprimand.
j. Penal deductions from pay (as authorized by the Air Force Act).

5. Under Section 133(2) of the Air Force Act the punishments which could be awarded
to an airman by a Courts Martial are as follows;
a. Death.
b. Rigorous imprisonment.
c. Simple imprisonment.
d. Detention for a term not exceeding three years.
e. Discharge with ignominy from the Air Force.
f. Dismissal from the Air Force.
g. In the case of a Warrant Officer or a Non Commissioned Officer forfeiture of
seniority or rank or reduction of rank to a lower grade.
h. In the case of a Warrant Officer or a Non Commissioned Officer severe reprimand.
j. In the case of a Warrant Officer or a Non Commissioned Officer reprimand.
k. Such forfeitures of and penal deductions from pay and such fines (as authorized by
the Air Force Act).

POWER OF PUNISHMENTS OF SUMMARY COURTS

There are two types of punishments impose by the summary courts. They are;
a. Summary Punishments.
b. Minor Punishments.

Summary Punishments - Summary Punishments means the severe punishments which could
affect the salary of the accused. Power to award summary punishments could be seen in
Sections 42 and 43 of the Air Force Act. Summary punishments are;
a. Detention/imprisonment.
b. Fine.
c. Deduction from pay.
d. Field punishments.

Minor Punishments - Minor Punishments are described in Regulation 36(6) of the

Disciplinary Regulations in the Subsidiary Legislation. Minor punishments could be imposed
only by a Commanding Officer in the rank of Squadron Leader or above. The Minor
punishments are;
a. Severe reprimand.
b. Reprimand.
c. Admonition.
d. Deprivation of good conduct badges.
e. Fourteen days confinement to camp.
f. Three extra guards or pickets.
g. Extra duties.

Commander of the Air Force will act as the Summary Court when disposing charges of
Officers and Warrant Officers. The power of punishments of the Commander (or any

46
Disposing Officer appointed by him to hear a charge of an Officer or a Warrant Officer) is
described in Section 42 of the Air Force Act as follows;

For Officers:

Section Punishment By whom On whom

42 (a) Forfeiture of The Commander of Officers in the Rank
seniority of rank the Air Force or any of Pilot Officer to
officer in the rank of Squadron Leader
Forfeiture of Group Captain or
seniority in the corp. above appointed by
Forfeiture of all or the Commander
any part of the
service
Severe reprimand
Reprimand

For Warrant Officers

Section Punishment By whom On whom

42 (b) Forfeiture of The Commander of Warrant Officers
seniority of rank the Air Force or any
officer in the rank of
Severe reprimand Group Captain or
Reprimand above appointed by
Deduction From his the Commander
pay as is authorized
by the Air Force Act

Commanding Officers will act as the Summary Court when disposing charges of Air Force
Personnel in the rank of Flight Sergeant and below.

The power of punishments of the Commanding Officer is described in Section 43 of the Air
Force Act and Regulation 36(6) of the Disciplinary Regulations in the Subsidiary Legislation.
The punishments described in Section 43 of the Air Force Act are as follows;

Section Punishment By whom On whom

47
Section 43 (a) (i) 90 days Commanding Officer Flight Sergeant or
Imprisonment in the Rank of Wing Below
/detention Commander or above
Section 43 (a) (ii) 28 days detention Commanding Officer
Section 43 (b) Fine up to Rs.20/= in the rank of
Section 43 (c) Deduction from pay Squadron Leader or
above
Section 43 (d) Field punishments Commanding Officer Only on Air
with forfeiture of in the rank of Craftsmen and
pay Squadron Leader or Leading Air
above Craftsmen
Section 43 (e) and Minor punishments Commanding Officer Flight Sergeant or
Regulation 36 (6) of in the rank of Below
the Disciplinary a) severe reprimand Squadron Leader and
Regulations b) reprimand above
c) admonition
d) deprivation of
good conduct
badges
e) fourteen days
confinement to
camp
f) three extra guards
or pickets
g) extra duties

Commanding Officer can delegate his disposing powers to a Commissioned Officer under his
command as per Section 41 of the Air Force Act and such Disposing Officers are called
“Subordinate Commanders”. They will act as the Summary Court when disposing charges
of Air Force Personnel in the rank of Flight Sergeant and below. However the jurisdiction
varies according to the rank of the Disposing Officer and the rank of the Accused. The power
of punishments of the Subordinate Commanders is described in Regulation 36 (7) of the
Disciplinary Regulations in the Subsidiary Legislation. The punishments describe in

48
Regulation 36 (7) of the Disciplinary Regulations in the Subsidiary Legislation are as
follows;

Section Punishment By whom On whom

Regulation 36(7)(a) Severe reprimand Subordinate Non Commissioned
(i) of the Reprimand commander in the Officer
Disciplinary Admonition rank of Squadron
Regulations Leader and above
Regulation Fine of Rs.10/= Subordinate Airman
36(7)(a)(ii) of the 14 days confinement commander in the
Disciplinary to camp rank of Squadron
Regulations 3 extra guard duties Leader and above
or pickets
Extra duties
Admonition
Reprimand Subordinate Corporal
Regulation Admonition commander in the
36(7)(b)(i) of the rank of Flight
Disciplinary Lieutenant and
Regulations below

Regulation Fine of Rs.15/= Subordinate Airman

36(7)(b)(ii) of the 7 days confinement commander in the
Disciplinary to camp rank of Flight
Regulations 3 extra guards or Lieutenant and
pickets below
Extra duties
admonition

49
 LAW OF EVIDENCE

Knowledge of this area of Law is important to service personnel as a requirement exists

under Sec.81 of the Air Force Act to adopt rules of evidence in proceedings before a Court
Martial. Hence, in this lesson attention will be drawn to the following specific areas of Law
of Evidence.

WHAT IS THE LAW OF EVIDENCE

The Law of Evidence is contained in the Evidence Ordinance No.14 of 1895.

Evidence is comprised of facts which are used to prove or disprove an issue under inquiry in
court of law. Facts are 2 types’ i.e. Physical facts and mental facts.
Eg: That a man heard or saw something is a fact. That a man said a certain word is a fact.
That a man has certain reputation is a fact.

These facts are produced before the Court by way of;

a. Oral Evidence.
b. Documentary Evidence.
c. Real Evidence.

ADMISSIBILITY AND RELEVANCY OF EVIDENCE RELEVANCY OF FACTS

Any fact which could be used to prove or disprove an issue under inquiry is called a
“Relevant Fact.” Every fact, which seems to be relevant to prove an issue under inquiry,
cannot be taken as evidence because every fact is not admissible in court under the law of
evidence.

a. “A” is accused of the murder of “B” by beating him. Whatever was said or done by
“A” or “B” or the bystanders at the beating, or so shortly before or after it as to form part of
the transaction is a relevant fact.
b. The question is whether “A” has committed a crime at Colombo on a certain day. The
fact that on that day “A” was at Galle is a relevant fact.
c. “A” is charged for the murder of “B” by intentionally shooting him dead. The fact that
“A” on other occasions shot at “B” is a relevant fact as showing his intention to shoot “B.”
However, the fact that “A” was in the habit of shooting at people with intent to murder them
is an irrelevant fact.

ADMISSIBLE EVIDENCE

Not all facts are admissible under the Law. Admissible means legal receivableness of a fact.
Eg: A confession is an admission of guilt. However though a confession is logically
relevant to prove or disprove an issue under inquiry a confession may under following
circumstances is inadmissible in Court.
a. Confession caused by an inducement, or promise.
b. Confession made to Police Officer, a Forest Officer or an excise Officer.
c. Confession made by any person while in the custody of a Police Officer or Forest
Officer or an Excise Officer.

50
Classification of Evidence - Classification of Evidence for propose of these studies Evidence
is classified as Oral, Documentary, Real and Best Evidence.

Oral Evidence - All facts, except the contents of documents, may be proved by oral
evidence.
a. It is refers to a fact which could be seen it must be the evidence of a witness who says
he saw that fact.
b. It is refers to a fact which could be heard that fact.
c. If it refers to a fact which could be perceived by any other sense or in any other sense
or in any other manner, it must be the evidence of a witness, who says he perceived that fact
by that fact by that sense or in that manner,
d. If it refers to an opinion or to the grounds on which that opinion is held, it must be the
evidence of the person who holds that opinion on those grounds,

Documentary Evidence - The contents of documents may be proved either by primary or

secondary evidence. Primary evidence means the document itself produced for the inspection
of the court.

Where a document is executed in several parts, each part is primary evidence of the
documents.

Where a document is executed in counterpart, each counterpart being executed by one or

some of the parties only, each counterpart is primary evidence as against the parties executing
it.

Where a number of documents are all made by one uniform process, as in the case of
printing, lithography, or photography, each is primary evidence of the contents of the rest; but
where they are all copies of a common original; they are not primary evidence of the contents
of the original.

Secondary evidence means and includes:-

a. Certified copies given under the provisions hereinafter contained;

b. Copies made from the original by mechanical processes which in themselves insure
the accuracy of the copy, and copies compared with such copies;
c. Copies made from or compared with the original;
d. Counterparts of documents as against the parties who did not execute them;
e. Oral accounts of the contents of a document given by some person who has himself
seen it.

1) A photograph of an original is secondary evidence of its contents, though the

two have not been compared, if it is proved that the thing photographed was the
original.
2) A copy compared with a copy of a letter made by a copying machine is
secondary evidence of the contents the letter, if it is shown that the copy made by the
copying machine was made from the original.
3) A copy transcribed from a copy, but afterwards compared with the original, is
secondary evidence; but the copy not so compared is not secondary evidence of the
original, although the copy from which it was transcribed was compared with the
original.

51
 Real Evidence - Real evidence is the things which are examined by the Court to
prove or disprove a fact.

Eg: X- ray photograph

Tape recordings
Behaviour of trained police dogs
Specimens of handwriting
Foot prints
Things inspected in a location

Best Evidence - Best evidence depends on the circumstances of the case.

Eg: When documentary evidence is available oral evidence becomes inferior. However,
under different circumstances oral evidence becomes best evidence when evidence of
eyewitnesses is considered.

COMPETENCY OF WITNESSES

All personnel are competent to give evidence unless the court considers that they are unable
to understand the questions put to them or give rational answers to those questions. Because
of;
a. Tender age.
b. Extreme old age.
c. Disease of body or mind.
d. Another such cause.

GUIDELINES IN DISPOSING CHARGES, DRAFTING CHARGE SHEETS AND

PROCEEDINGS OF AIRMEN OTHER THAN WARRANT OFFICERS

The officer preferring/disposing of any charge against an officer or airman is to ensure that
each charge discloses an offence under the Air Force Act or any other Act or Legislation of
the Country with sufficient evidence to prove the case and should be clear enough to enable
the accused to readily understand what he has to answer.

Charge should be framed in accordance with the following requirements:-

52
Every charge shall include the name and description of the person charged, and shall state, in
the case of an officer his rank, and name, and Base / Station /Unit etc (if any), and in the case
of an airman, his number, rank, name and Base/Station/Unit etc (if any) and where he does
not at the time of the trial belongs to the Regular Air Force, shall show by the description of
him, that he is subject to the Air Force Act in respect of the offence charged.

Each charge shall specify one offence only, and in no case shall an offence be described in
the alternative in the same charge.

Each charge shall be divided into two parts:-

a. the statement of the offence; and
b. the statement of the particulars of the act, neglect or omission constituting the offence.

The offence shall be stated, if not a civil offence, in the words of the Air Force Act, and if a
civil offence, in such words as mentioned in the particular Act as sufficiently describes that
offence, but not necessarily in technical words.

The particulars shall state such circumstances in respect of the alleged offence, as will enable
the accused to know every act, neglect or omission which it is intended to be proved against
him as constituting the offence.

The particulars in one charge may be framed wholly or partly by a reference to the particulars
in another charge, in that case so much of the latter particulars as is so referred to shall be
deemed to form part of the first mentioned charge as well as of the other charge. {Court
Martial Regulation 21 (1) (b) (VI)}. However it is advisable to frame separate charges
including all required details to avoid any confusion.
When it is intended to prove any facts in respect of which any deduction from ordinary pay is
to be awarded as a consequence of the offence charged, the particulars shall state those facts.

A charge sheet shall not be invalid by reason only of any mistake in the name or description
of the person charged, if the accused does not object to the charge sheet and/or it is not shown
that injustice has been done to the person charged.

In the construction of a charge sheet or charge there shall be every proposition which may
reasonably be presumed to be implicitly included, though not expressed therein.

The Caption of the statement of the offence, should always be in the words of the Air Force
Act,

53
as appearing in small print, on either left or right margin of the page in the Act in line with
the
section of the Air Force Act and should be in Capital Letters. Examples:-

“FRAUD BY PERSON IN CHARGE OF PROPERTY”, In that he ……….”

“NEGLECT TO OBEY GENERAL OR OTHER ORDERS, In that he ……..”

“STRIKING OR THREATENING A SUPERIOR OFFICER, In that he ……”

However when a section of the Air Force Act describes more than one offence or several acts
which compile few offences, the most applicable words should be used. As an example when
a person is to be charged for attempting to commit suicide, the offence under which the
charge should be framed is Section 127 of the Air Force Act where the side note states
“Dueling and attempting to commit suicide”. In such a matter the most appropriate caption
should be “ATTEMPTING TO COMMIT SUICIDE”

The statement of the charge should always be given in one of the following forms:-
A charge under Air Force Act, Ex: 1, (charge sheets of airmen)
(Name of the offence as per words of the Air Force Act) In that he/she at Sri Lanka
Air Force Base/Station/ Unit etc ………………….. on or around (date)
……………….. did (describe the offence) ……………………….. thereby
committing an offence under Section ………… of the Air Force Act which is
punishable under section 43 (as applicable) of the Air Force Act.

A charge under Air Force Act, Ex: 2,

(Name of the offence as per words of the Air Force Act) In that he/she at Sri Lanka
Air Force Base/Station/ Unit etc………………………….. during the period of
……… to ………(the total period should not exceed one year) did misappropriate
……..(the property misappropriated) worth of Rupees …. ..(Rs. …..../-) a description
of which is attached as annex “A” hereto thereby committing an offence under
Section ---------- of the Air Force Act which is punishable under section 43 (as
applicable) of the Air Force Act.

A charge under Penal Code

(Name of the offence as per words of the side note of the offence under the Penal
Code) In that he/she at Sri Lanka Air Force Base/Station/ Unit ……………………..
on or around (date) ……………….. did forge the signature of ….………….. on the

54
 leave form dated …………, thereby committing an offence under section 452 of the
Penal Code which is punishable under section 454 of the Penal Code to be read in
conjunction with section 43 of the Air Force Act. (as applicable)

Offences punishable more severely on Active Service than at other times.

On active service certain offences carry more severe punishments than at other times. These
are specified in Air Force Act S.96, S.97, S.99, S.103, and S.110. All charges framed against
officers and airmen during “active service” should bear the phrase “Whilst on Active
Service” or ‘WOAS’, which would appear before the statement of the offence on the Form
252/Form 252A.

The person who preferred/draft the charge should include his/her details of the appropriate
place of F 252 and should sign with the date.

At the right side of the column of charge sheet it is advisable to list of the following;
a. The List of witnesses against the accused (Ex.- 02552 Flt Lt MR Perera)
b. The List of documentary evidence (Ex- F 581, F 268, Cash Book of Command
Agro Fund, Medical Report of 22225 Cpl Perera PMS issued by Dr. LM Sirisena,
Police Report dated 2/2/2016 issued by CPM)
c. The list of productions
Ex- Two cans of Petrol
500 g of Dhal
A knife with blood
Blood stained blue colour shirt

In addition to above when the text of the offence is drafted it is necessary to be attentive to
the following significant elements.
a. Correct section mentioning the offence and the penal section should be
mentioned in the text of the offence in consistent with the respective Act or Acts.
b. The date, period and the place where the incident took place should be
mentioned correctly.
c. Abbreviations should not be used in the text of the offence and the
proceedings.
d. Text of the offence should be grammatically correct.
e. Text of the offence should be factually correct.

55
 STAFF-IN-CONFIDENCE S.L.A.F- F.252

SRI LANKA AIR FORCE

CHARGE

Charge No: ONE

Charge against Svc No: 33333 Rank: Leading Aircraftsman
Name with Initials : Perera ABCD
Unit: Sri Lanka Air Force Station Colombo

PLACE AND DATE OF OFFENCE: Sri Lanka Air Force Station Colombo on 07 January 2016
OFFENCE: WOAS: ABSENCE FROM DUTY WITNESSES:
WITHOUT LEAVE: In that he at Sri Lanka Air Force
Station Colombo at approximately 0800 hours on 07 January (1) Witnesses
2016 did absent himself without official leave until reporting Names of the witnesses
to the Main Guard Room Sri Lanka Air Force Station
Colombo at approximately 0800 hours on 07 March 2016, (2) Documentary Evidence
thereby committing an offence under section 106 (a) of the a. F.581
Air Force Act punishable under section 43 of the Air Force b. F. 295
Act. c. F. 124
d. Copy of the complain book
Total absence 60 days
(3) Production
Air Force Act section :106 (a)
Air Force Act section: 43

In the charge sheet in respective spaces, the following information should be reflected
correctly.
a. The person who prefers the charge sheet should sign the F.252 and further his
name and the date of signing too should be incorporated therein.
b. The disposing officer’s details i.e. name, rank, appointment (Cmdt/Base
Cmdr/CO/Formation CO) should be mentioned in the charge sheet.
c. The details that are to be filled by the Base Commander/Commanding Officer,
in respect of the questions raised in the charge sheet under the Caption “To be filled
by the Base/Commanding Officer” should be correctly filled by him being the
disposing officer of the charge.

56
 d. If the accused is in the rank of Sergeant or above Court Martial option should
to be given to the accused if the disposing officer finds that the accused is guilty and
wishes to impose one of the severe punishments. However the option should be given
prior to imposing the punishment. When the punishment is announced the case is
concluded and cannot go for a Court Martial. As described if disposing officer intends
to impose a severe punishment he should give the option of Court Martial to SNCO.
For easy reference the severe punishments are listed below,
1) Detention
2) Fine
3) Forfeiture of Seniority
4) Deduction from pay
5) Field punishment.
e. However, if the disposing officer wishes to give a minor punishment to an
accused in the rank of SNCO or above it is not required to give Court Marital option.
For easy reference the minor punishments are listed below.
1) Severe Reprimand
2) Reprimand
3) Admonition
4) Deprivation of Good Conduct Badges
5) Fourteen days confinement to camp
6) Three extra guards or pickets
7) Extra duties
f. Further if the accused is an airman in the rank of Air Craftman, Leading Air
Craftman or Corporal they have no right to opt for a Court Martial even if the
punishment to be imposed is severe.

g. The applicability of Section 40 (3) of the Air Force Act as amended is to be

indicated and whether option of Court Martial is given or not is also to be indicated in
the front page of F 252.
Name and signature of person preferring the charge 11111 Flight Seargent Kumara QRST

Unit : Sri Lanka Air Force Station Colombo

Date : 05 May 16

(Offence is to be clearly explained to the accused at the time of disposing the charge)

57
DISPOSAL OF CHARGE (To be filled by the Subordinate Commander where applicable)
a. Punishment Awarded …………...………………….…………………………….
………………………………….………………………………..……..
or

b. Remanded for disposal by Base Cmdr/CO ……...………………….

……………………………………………..…………...….…….
c. Remarks (See overleaf) ………..……………...
………………………………………………………………….………….
d. Rank and Name of the Subordinate Commander ….………..……………….……

………………………...…..………......
Date: ……………………. Subordinate Commander’s Signature

(To be filled by the Base Commander/Commanding Officer)

a. Punishment Awarded : 10 days detention with deduciton of pay and allowances for the period of
absence and detention
(The punishment should be worded in consistent with the Air Force Act)

b. Whether Sec. 40(3) of AFA (Amended) complied with (if applicable): No

(Applicable only to SNCOs when disposing officer intends to award a severe punishment)
c. Opted for Court Martial/Not opted for Court Martial (Applicable only for SNCOs) Not
Applicable

d. Remanded for Trial by Court Martial:

(This should be filled appropriately if Court Martial was opted)

e. Remarks (See overleaf)

f. Base Cmdr’s/CO’s Rank and Name Air Commodore LMN Alwis

………………………...…………
Date: 07 May 16 Base Cmdr’s/CO’s Signature

Commanding Officer
Sri Lanka Air Force Station
Colombo

58
Section 43 of the Air Force Act and Regulation 2 and 3 of the Air Force Investigations
Regulations provide the procedure to be followed in disposing a charge. Further the accused
should be given the rights contained in Regulation 3 (1) and 3 (2) of the Air Force
Investigations Regulations when disposing the charge.

The process and the sequence of conducting the summary trial, recording the evidence and
awarding the punishment is as follows:
a. At the commencement of the summary trial, the disposing officer should read
out the charge sheet to the accused and he must explain the contents of the charge
to the accused in order for the accused to understand it.
(The disposing officer must record that he explained the charge to the accused in the
summary trial proceedings)
b. The disposing officer should allow the accused to be present in court through
out the trial.
c. After explaining the charge the witnesses against the accused shall be called
separately one by one to give evidence. It is advisable to take evidence on oath or
affirmation. The accused should be given the opportunity to cross examine such
witnesses who give evidence against him.
(The disposing officer should record in the summary trial proceedings whether
opportunity to cross examine was given to the accused. If the accused cross examined
the witnesses it should be recorded in verbatim. If the accused denies to cross
examine the witness against him that fact also should be indicated in proceedings.
d. After evidence against the accused is lead the accused must be given the
opportunity to give evidence if he wishes to do so. The accused is not mandatory to
give evidence. He / She can remain silent. If he / she is willing to give evidence, can
give evidence on an oath / affirmation or without giving an oath. The accused can be
examined only if he/she gives evidence on an oath / affirmation.
e. After the accused is given the opportunity to give evidence he should be given
the opportunity to summon witnesses for the defence and to produce evidence in
his favour.
(The disposing officer should record whether the accused was given the opportunity
to summon witnesses in his favor in the summary trial proceedings and evidence
transpired thereof)

59
 f. The disposing officer should elaborate the reasons for his judgment which
must be based on Evidence against the accused as well as the Evidence transpired in
favour of the accused and his findings at the summary trial.
g. In reasons for judgment it is necessary to mention whether the accused is
guilty or not guilty for the offence mentioned in the charge sheet.

Following captions in the F 252 are to be elaborated according to the guidelines explained
hereof when drafting the summary trial proceedings.

Evidence for Prosecution

a. Evidence of each and every witness who was summoned to the summary trial
should be elaborated in verbatim to prove the guilt of the accused beyond reasonable
doubt.
b. The contents of other documents such as letters, minutes etc which are used to
prove the case should be elaborated with the relevant facts.
c. When a document is produced before a summary trial, the serviceman in
whose custody such document is available or a serviceman who is familiar with the
facts of the said document should be summoned to the summary trial to give evidence
on the document.
d. If any order is referred to in the text of the offence, the order so referred
should be attached to the charge sheet in which the front page of the order (if any), the
page in which the applicable order is incorporated and the page where the signature of
the authorizing officer for the order is contained should be attached together.
e. If there is a civilian witness he can be summoned to court, but cannot be
forced to give evidence.
f. It there are productions, the person in whose custody the productions are
available should give evidence before court.

STAFF-IN-CONFIDENCE
REMARKS

EVIDENCE FOR PROSECUTION *

WITNESSES:

(If any serviceman is summoned to the summary Trial as a witness for investigating a charge of
Absence From Duty Without Leave, depending on each circumstances, the following facts or any other

60
facts of similar nature be elicited from him )

Evidence given by the Officer In Charge / Warrant Officer In Charge or Senior Non Commission
Officer In Charge of the accused

The Officer In Charge, Warrant Officer In Charge or Senior Non Commission Officer In Charge of the
accused giving evidence stated that accused airman 33333 Leading Air Craftman Perera ABCD was
granted leave on 01 January 2016 for 7 days. He was supposed to report back to the camp on 07 January
2016 whereas he didn’t report back until 7 March 2016. The total period of his absence is 61 days and
two hours. Further I being the Officer I/C, WO I/C or SNCO I/C under instructions of ………………..
(name of superior officer) instructed to raise F. 581. Since he didn’t report to the camp after 7 days, I
instructed to raise F. 124.

The accused 33333 Leading Air Craftman Perera ABCD was given the opportunity to cross examine the
witness. (Mention whether he avails the opportunity or not. If the accused cross examined it should be
recorded accordingly)

Form 581

(Describe the purpose of raising Form-581, important contents of Form-581 in proof of the charge)

Form 581 is the form raised by the Police Section Sri Lanka Air Force Station Colombo under the
instructions of the Officer In Charge of the section of the accused. F-581 is raised after expiration of 07
days from the date of absence of the serviceman.

According to the F – 581 raised on 07 January 2016, 33333 Leading Air Craftman Perera ABCD got
absent on 07 January 2016 at 0600 hours. He reported back to the camp on 07 March 2016 at 0800
hours. The total period of absence is 61 days and 2 hours only. The F – 581 was raised on 07 March
2016 by 30000 Corporal Silva WXZY of Air Force Police.

Form 124

(If Form -124 is available as documentary evidence its contents should be elaborated)

Form 124 is raised by the Officer In Charge Personnel I. The purpose of raising this form is to make
necessary arrangements to inform the different government authorities of the Absence of this
serviceman and to apprehend the airman for administrative formalities of the Air Force. This form is
distributed among following recipients:

61
 a. Director State Intelligence Service
b. Deputy Inspector General Criminal Investigation Dept Police Headquarters
c. Officer In Charge Police Station(Particular area of the accused)
d. Provost Marshal Air Force Headquarters Colombo
e. Officer In Charge Command Personnel 1 Section Air Force Headquarters Colombo
f. Officer In Charge Pay and Record 1 Section Sri Lanka Air Force Colombo
g. Officer In Charge Command Personnel 2/ Command Personnel 3/ Command Volunteer Record
Air Force Headquarters Colombo
h. In Charge Immigration & Emigration deployment Police Headquarters
j. Controller of Immigration and Emigration Department of Immigration & Emigration
k. Director General of Civil Aviation Bandaranayake International Air Port Katunayake

The information regarding the accused, Leading Air Craftman Perera ABCD, in detail is in F-124 who
is required to be apprehend for administrative formalities of the Air Force.

The DOB entry

(Define DOB entry , purpose of making DOB entry )

According to the DOB Entry made by …………………………. (please insert the name) at 0900 hours
on 07 March 2016 at the Main Guard Room Sri Lanka Air Force Station Colombo, 33333 Leading Air
Craftman Perera ABCD went on leave on 01 January 2016. His leave period was expired on 08 January
2016 and he had to report back to camp on 09th January 2016 where as he reported back on 07 March
2016. When inquiring the reasons for his absence he started that ………………………. (State reasons
accordingly) The following steps were taken.

a. Informed the Officer In Charge Police ………….

b. Informed the Commanding Officer ………….
c. Statements were recorded from the accused and relevant witnesses
d. Kept the accused airman in open arrest till recording statements.

The applicable contents of following documents should be elaborated with the relevant facts
a. F. 295
b. Police Reports if any

62
Evidence for Defence

a. This should be limited only to the testimony of the accused and any witness
summoned by the accused before the summary trial or any documentary evidence or
production submitted to court by the accused or by any witness of the accused.
b. The evidence given by the defence witnesses at the summary trial should be
elaborated in verbatim under this caption.

EVIDENCE FOR DEFENCE *

(The Evidence for Defence must consist of what was stated by the accused and the witnesses
summoned by the accused to the Summary Trial. The disposing officer should ask the
accused whether or not he summons witnesses to give evidence. This should be recorded in
the summary trial proceedings.)

The accused 33333 Leading Air Craftman Perera ABCD stated that he was granted
leave on 01 January 2016 for 7 days. He was supposed to report back to the camp on
07 January 2016 whereas he didn’t report back until 7 March 2016. The total period
of his absence is 61 days and two hours. He pleaded guilty for the offence he
committed. He stated that he got family problems during last few months and he
wanted to solve them off. Further he stated that he was reluctant to inform his
problems to any superior officer.

Reasons for Judgment

a. The reasons upon which the judgment of the summary trial is based should be
elaborated under this caption.
b. The disposing officer should put forward the reasons for his judgment under
this caption which must be based on Evidence for Prosecution, Evidence for Defence
and his findings at the summary trial.

REASONS FOR JUDGEMENT *

The documentary evidence produced before the court such as Form 581, Form 124, Form 295
and the DOB entry clearly reflects that the accused got absent without official leave on 07
January 2016 till he was apprehended by Sri Lanka Air Force / Civil Police on 04 Sep 2017.
In analyzing the evidence for Prosecution and evidence for Defence it was found that the
airman did fail to report to the duty after completion of the official leave given to him. The
accused should have informed the prevailed difficult situation at his home to his officer in

63
charge and the accused had neglected to make necessary arrangements to inform the relevant
authorities regarding the inability to report for duty.

(Whether the accused is guilty/not guilty should be mentioned)

(Reasons for the judgment should be elaborated and it must be based on the applicable
contents of Evidence for Prosecution, Evidence for Defence and the findings of the Disposing
Officer which justify the award of the punishment.

The Disposing Officer should also impose punishments within his power of punishment in
compliance with the Air Force Act.

64