Development of criminal law
From the time in which Sri Lanka become a British colony the Roman Dutch criminal law and Sinhala (srilankan) criminal law prevailed in Ceylon,The Roman Dutch criminal law was operative in the maritime provinces where the Sinhala criminal law was operative in the Kandyan Provinces.The British policy for the colonies of ceded ,conquered or settled was that they continued to apply the law in the colonies that was existed.In 1979 by Proclamation the British continued to enforce the law of the colonies .In 1852 by the Ordinance No 5,the British made the Roman Dutch Criminal Law applicable to the entire nation ,what led to this action was that British treated the Sinhala Criminal Law as cruel and inhuman law.
From time to time ,in which the Roman Dutch Criminal Law operated as the criminal law of the country ,and it was mostly exercised by the English Judges.Therefore due to lack of knowledge of RDL ,and Personal Laws,they introduced English law criminal concepts through out the case law and legal procedures without even realizing it.As a result of this British introduced the penal code by way of Act no 2 of 1833 to Sri Lanka.
section 3 of the penal code states;
''so much of the criminal law here to administered in Ceylon as is known as'' the criminal law of the united provinces''or as ''the Roman Dutch law is here by abolished''.
An important question arose regarding the section 3 of the penal code,A question arose as to whether the section 3 abolished only the principals of the Roman Dutch Law or whether it abolished only the unwritten principals of English criminal law introduced by the English judges.This issue remained a question for along time.This question was fully given a clear and firm decision by the full bench of the Supreme Court in the case of Kachchery Mudaliyar vs.Mohammed 21 NLR 29 ,
At the time of the incident a law prevailed prohibiting the transportation of rice without license.This law was not an offence under the penal code but it was not an offence under the penal code.but it was punishable under another law. One day a man was arrested for attempting to transport rice without a license to the prohibited area at the check point before he committing the said offence.A case was filed against him although he was actually arrested before he could enter that restricted area.
The defence established the argument that the prosecution was failed to prove the ingredient,of the offence which was that the defendant entered such area on the said date.Court accepted that the argument on the part of the prosecution ,they tried to seek the help of section 490 of the penal code,by upholding the argument that the defendant could be held guilty for committing such offence.
''Who ever attempts to commit an offence punishable by the code''-section 490
However the argument of prosecution ,was not valid since the provision of section 490 remained exclusive to the penal code,so this provision could be used only to the offences which were prescribed in the penal code since the transporting rice without license is not an offence under the penal code and the prosecution was failed to make use of this provision.
Then the prosecution presented new argument since the English law concepts had introduced by the English Judges, for committing an offence,they can used this concept inorder to punish such offences.
Then the question arose whether the principals introduced by the English judges were abolished by section 3 of the penal code or not.
The court held that section abolished all principals of criminal law prevailed at that time by the penal code was enacted in1833.Therefore it is important to remember that our entire criminal law is codified and that there is not any unwritten laws under our criminal law.All parts of the criminal law of Sri Lanka are statutory.
Friday, May 10, 2013
Friday, January 7, 2011
Department of Prisons (Sri Lanka)
The Department of Prisons is a non-ministerial government department in Sri Lanka responsible for the incarceration and rehabilitation of convicted criminal offenders and terror suspects in Sri Lanka, it comes under purview of the Ministry of Justice and Law Reforms. The Commissioner General of Prisons reports to the Minister of the Justice, who is in turn responsible to the Parliament of Sri Lanka for all the departments under his portfolio.
The current Commissioner General of Prisons is Major General V. R. de Silva[1].
The current Commissioner General of Prisons is Major General V. R. de Silva[1].
Mission statement
"Rehabilitation of prisoners and youthful offenders committed to prisons and training schools under the authority of any court in the island and research and training in the field of correction, custody, care and production of remand prisoners before the courts"History
The new prisons system that evolved in Britain was introduced to the British colonies during 1844. The Department of Prisons came into existence first affiliated to the Police Dept. under the then Inspector General of Police Sir George Campbel under the Act no.18 of 1844. The supervisions and control of all prisons in the Island ware vested in Inspector General of Prisons. From its inceptions the office of Inspector General of Prisons was held by the Inspector General of Police until 1905 when they separated Major de Wilton who till then held both offices was appointed Inspector General of Prisons and he was also appointed to be the Superintendent of the Prisons at Welikada, Mutwal and Hultsdorf. In 1922 when the penal colony of the Andaman Islands were closed down and 62 life convicts sent back to Ceylon. 1944 a probation system was introduced as a branch of the Prison DepartmentResponsibilities
The Department of Prisons is tasked with ensuring that custodial sentences (imprisonment) and non-custodial sentences and orders (home detention, supervision, community work and release on conditions) imposed by Sri Lankan Courts are administered in a safe, secure, humane and effective way. The Department aims to contribute to the maintenance of a safe and just society by reducing the level of re-offending through the delivery of targeted and appropriate programmes to help offender’s rehabilitation and reintegration to society. The Department is also responsible for the transportation of prisoners within the country with the assistance of the Sri Lanka Police.Facilities
- Prison Headquarters, Colombo
- The Centre for Research and Training in Corrections
- Maximum security prisons - 03
- Remand Prisons - 17
- Work Camps – 06
- Open Prison Camps – 02
- Correctional Centers for Youthful Offenders –02
- Training School for Youthful Offenders – 01
- Work Release Center – 01
- Lock–ups –28 (Prison buildings sited near courts to which prisoners with pending cases are transferred.)
Ranks
Officers
- Commissioner General of Prisons
- Commissioner of Prisons
- Deputy Commissioner of Prisons (SLAS officer)
- Commissioner (Welfare)
- Superintendent (Special Grade)
- Superintendent
- Assistant Superintendent
Jailors
- Chief Jailor, Chief Welfare Officer
- Jailor Class 1, Senior Welfare Officer
- Jailor Class 2
Guards & other staff
- Overseer
- Guard
- Watcher
- Labour
Supreme Court of Sri Lanka
Constitution of the court
The Supreme Court of Sri Lanka was created in 1972 after the adoption of a new Constitution. The Supreme Court is the highest and final superior court of record and is empowered to exercise its powers, subject to the provisions of the Constitution. The court rulings take precedence over all lower Courts. The Sri Lanka judicial system is complex blend of both common-law and civil-law. In some cases such as capital punishment, the decision may be passed on to the President of the Republic for clemency petitions. However, when there is 2/3 majority in the parliament in favour of president (as with present), the supreme court and its judges' powers become nullified as they could be fired from their positions according to the Constitution, if the president wants. Therefore, in such situations, Civil law empowerment vanishes.sourceJurisdiction
The Supreme Court has original, appellate and advisory jurisdiction.Article 118 of the Constitution - the Supreme Court is the highest and final superior court of record and is empowered to exercise the following powers, subject to the provisions of the Constitution:
- Jurisdiction in respect of Constitutional matters (Articles 120 to 125)
- Jurisdiction for the protection of fundamental rights (Article 126)
- Final appellate jurisdiction (Article 127, 128)
- Consultative jurisdiction (Article 129)
- Jurisdiction in petitions relating to election of President; petitions relating to the validity of a referendum; appeals from Orders/judgments of the Court of Appeal in other election petitions – Article 130 (as amended by the 14th Amendment)
- Jurisdiction in respect of any breach of the privileges of Parliament (Article 132);
- Jurisdiction in respect of other matters which Parliament may by law vest or ordain
Landmark Judgments
Judgments of the supreme court can be found at LawNet.source;-
From Wikipedia, the free encyclopedia
Thursday, January 6, 2011
Legal aspects of computing
Legal aspects of computing are related to various areas of law. Cyberlaw is a term that encapsulates the legal issues related to use of communicative, transactional, and distributive aspects of networked information devices and technologies. It is less a distinct field of law than property or contract law, as it is a domain covering many areas of law and regulation. Some leading topics include intellectual property, privacy, freedom of expression, and jurisdiction. Information Technology Law (or IT Law) is a set of recent legal enactments, currently in existence in several countries, which governs the process and dissemination of information digitally. These legal enactments cover a broad gamut of different aspects relating to computer software, protection of computer software, access and control of digital information, privacy, security, internet access and usage, and electronic commerce. These laws have been described as "paper laws" for "paperless environment".
The related topics of software licenses, end user license agreements, free software licenses and open-source licenses can involve discussion of product liability, professional liability of individual developers, warranties, contract law, trade secrets and intellectual property.
In various countries, areas of the computing and communication industries are regulated – often strictly – by government bodies.
There are rules on the uses to which computers and computer networks may be put, in particular there are rules on unauthorized access, data privacy and spamming. There are also limits on the use of encryption and of equipment which may be used to defeat copy protection schemes. The export of Hardware and Software between certain states is also controlled.
There are laws governing trade on the Internet, taxation, consumer protection, and advertising.
There are laws on censorship versus freedom of expression, rules on public access to government information, and individual access to information held on them by private bodies. There are laws on what data must be retained for law enforcement, and what may not be gathered or retained, for privacy reasons.
In certain circumstances and jurisdictions, computer communications may be used in evidence, and to establish contracts. New methods of tapping and surveillance made possible by computers have wildly differing rules on how they may be used by law enforcement bodies and as evidence in court.
Computerized voting technology, from polling machines to internet and mobile-phone voting, raise a host of legal issues.
Some states limit access to the Internet, by law as well as by technical means.
Jurisdiction is an aspect of state sovereignty and it refers to judicial, legislative and administrative competence. Although jurisdiction is an aspect of sovereignty, it is not coextensive with it. The laws of a nation may have extraterritorial impact extending the jurisdiction beyond the sovereign and territorial limits of that nation. This is particularly problematic as the medium of the Internet does not explicitly recognize sovereignty and territorial limitations. There is no uniform, international jurisdictional law of universal application, and such questions are generally a matter of conflict of laws, particularly private international law. An example would be where the contents of a web site are legal in one country and illegal in another. In the absence of a uniform jurisdictional code, legal practitioners are generally left with a conflict of law issue.
Another major problem of cyberlaw lies in whether to treat the Internet as if it were physical space (and thus subject to a given jurisdiction's laws) or to act as if the Internet is a world unto itself (and therefore free of such restraints). Those who favor the latter view often feel that government should leave the Internet community to self-regulate. John Perry Barlow, for example, has addressed the governments of the world and stated, "Where there are real conflicts, where there are wrongs, we will identify them and address them by our means. We are forming our own Social Contract. This governance will arise according to the conditions of our world, not yours. Our world is different".[2] A more balanced alternative is the Declaration of Cybersecession: "Human beings possess a mind, which they are absolutely free to inhabit with no legal constraints. Human civilization is developing its own (collective) mind. All we want is to be free to inhabit it with no legal constraints. Since you make sure we cannot harm you, you have no ethical right to intrude our lives. So stop intruding!"[3] Other scholars argue for more of a compromise between the two notions, such as Lawrence Lessig's argument that "The problem for law is to work out how the norms of the two communities are to apply given that the subject to whom they apply may be in both places at once" (Lessig, Code 190).
With the internationalism of the Internet, jurisdiction is a much more tricky area than before, and courts in different countries have take various views on whether they have jurisdiction over items published on the Internet, or business agreements entered into over the Internet. This can cover areas from contract law, trading standards and tax, through rules on unauthorized access, data privacy and spamming to more political areas such as freedom of speech, censorship, libel or sedition.
Certainly, the frontier idea that the law does not apply in "Cyberspace" is not true. In fact, conflicting laws from different jurisdictions may apply, simultaneously, to the same event. The Internet does not tend to make geographical and jurisdictional boundaries clear, but Internet users remain in physical jurisdictions and are subject to laws independent of their presence on the Internet.[4] As such, a single transaction may involve the laws of at least three jurisdictions:
In practical terms, a user of the Internet is subject to the laws of the state or nation within which he or she goes online. Thus, in the U.S., Jake Baker faced criminal charges for his e-conduct, and numerous users of peer-to-peer file-sharing software were subject to civil lawsuits for copyright infringement. This system runs into conflicts, however, when these suits are international in nature. Simply put, legal conduct in one nation may be decidedly illegal in another. In fact, even different standards concerning the burden of proof in a civil case can cause jurisdictional problems. For example, an American celebrity, claiming to be insulted by an online American magazine, faces a difficult task of winning a lawsuit against that magazine for libel. But if the celebrity has ties, economic or otherwise, to England, he or she can sue for libel in the British court system, where the standard of "libelous speech" is far lower.
Internet governance is a live issue in international fora such as the International Telecommunication Union (ITU), and the role of the current US-based co-ordinating body, the Internet Corporation for Assigned Names and Numbers (ICANN) was discussed in the UN-sponsored World Summit on the Information Society (WSIS) in December 2003
In their essay "Law and Borders -- The Rise of Law in Cyberspace",[6] David R. Johnson and David G. Post offer a solution to the problem of Internet governance. Given the Internet's unique situation, with respect to geography and identity, Johnson and Post believe that it becomes necessary for the Internet to govern itself. Instead of obeying the laws of a particular country, Internet citizens will obey the laws of electronic entities like service providers. Instead of identifying as a physical person, Internet citizens will be known by their usernames or email addresses. Since the Internet defies geographical boundaries, national laws will no longer apply. Instead, an entirely new set of laws will be created to address concerns like intellectual property and individual rights. In effect, the Internet will exist as its own sovereign nation.
Even if the Internet represents a legal paradigm shift, Johnson and Post do not make clear exactly how or by whom the law of the Internet will be enforced. Instead, the authors see market mechanisms, like those that Medieval merchants used, guiding Internet citizens' actions like Adam Smith's invisible hand. Yet, as more physical locations go online, the greater the potential for physical manifestation of electronic misdeeds. What do we do when someone electronically turns off the hospital lights?
However, there is also substantial literature and commentary that the internet is not only "regulable," but is already subject to substantial regulation, both public and private, by many parties and at many different levels. Leaving aside the most obvious examples of internet filtering in nations like China or Saudi Arabia or Iran (that monitor content), there are four primary modes of regulation of the internet described by Lawrence Lessig in his book, Code and Other Laws of Cyberspace:
In comparison to traditional print-based media, the accessibility and relative anonymity of cyber space has torn down traditional barriers between an individual and his or her ability to publish. Any person with an internet connection has the potential to reach an audience of millions with little-to-no distribution costs. Yet this new form of highly accessible authorship in cyber space raises questions and perhaps magnifies legal complexities relating to the freedom and regulation of speech in cyberspace.
These complexities have taken many forms, three notable examples being the Jake Baker incident, in which the limits of obscene Internet postings were at issue, the controversial distribution of the DeCSS code, and Gutnick v Dow Jones, in which libel laws were considered in the context of online publishing. The last example was particularly significant because it epitomized the complexities inherent to applying one country's laws (nation-specific by definition) to the internet (international by nature). In 2003, Jonathan Zittrain considered this issue in his paper, "Be Careful What You Ask For: Reconciling a Global Internet and Local Law".[7]
In the UK the case of Keith-Smith v Williams confirmed that existing libel laws applied to internet discussions.[8]
In terms of the tort liability of ISPs and hosts of internet forums, Section 230(c) of the Communications Decency Act may provide immunity in the United States.[9]
These examples of filtration bring to light many underlying questions concerning the freedom of speech. For example, does the government have a legitimate role in limiting access to information? And if so, what forms of regulation are acceptable? For example, some argue that the blocking of "blogspot" and other websites in India failed to reconcile the conflicting interests of speech and expression on the one hand and legitimate government concerns on the other hand.[citation needed]
The motivation of both authors to write such an article is heavily debated amongst scholoars, however, two developments during this time give some insight to the reasons behind it. First, the sensationalistic press and the concurrent rise and use of "yellow journalism" to promote the sale of newspapers in the time following the Civil War brought privacy to the forefront of the public eye. The other reason that brought privacy to the forefront of public concern was the technological development of "instant photography". This article set the stage for all privacy legislation to follow during the 20 and 21st Centuries.[12]
For More Information See: Homeland Security Act
The CMA 1990 has many weaknesses, the most notable is its' inability to cater for, or provide suitable protection against a host of high tech attacks/crimes which have became more prevalent in the last decade. Certain attacks such as DDOS and BOTNET attacks can not be effectively brought to justice under the CMA. This ACT has been under review for a number of years. Computer crimes such as electronic theft are usually prosecuted in the UK under the legislation that caters for traditional theft (Theft Act 1968), because the CMA is so ineffective.
A recent example of Information Technology Law is India's Information Technology Act 2000, which became effective from 17 October 2000. This Act applies to whole of India, and its provisions also apply to any offence or contravention, committed even outside the territorial jurisdiction of Republic of India, by any person irrespective of his nationality. In order to attract provisions of this Act, such an offence or contravention should involve a computer, computer system, or computer network located in India. The IT Act, 2000 provides an extraterritorial applicability to its provisions by virtue of section 1(2) read with section 75.
India's Information Technology Act 2000 has tried to assimilate legal principles available in several such laws (relating to Information Technology) enacted earlier in several other countries, as also various guidelines pertaining to Information Technology Law. The government of India appointed an Expert Committee to suggest suitable amendments into the existing IT Act, 2000. The amendments suggested by the Committee were severely criticised on various grounds. The chief among them was the dilution of criminal sanctions under the proposed amendments. These amendments, perhaps with some modifications, have been approved by the Cabinet in India on 16 October 2006 and very soon the amendments will be laid down before the Indian Parliament for suitable legislation.
The IT Act, 2000 needs an overall haul keeping in mind the contemporary standards and requirements and the Indian law in this regard is lagging far behind. In the absence of proper law in place, the only recourse is to rely upon the traditional criminal law of India, i.e. Indian Penal Code, 1860 (IPC)[1]that is highly insufficient for cyber crimes in India. Alternatively, a purposive, updating and organic interpretation of the existing provisions of the IT Act, 2000 and IPC by the judiciary must be tried.
The IT Act, 2000 requires a purposive and updating amendment initiative as many contemporary crimes and contraventions are missing from it. Besides, there is an emergent need of introducing the concept of cyber forensics in India.
Many Asian and Middle Eastern nations use any number of combinations of code-based regulation (one of Lessig's four methods of net regulation) to block material that their governments have deemed inappropriate for their citizens to view. PRC, Saudi Arabia and Iran are three excellent examples of nations that have achieved high degrees of success in regulating their citizens access to the Internet.[10][14]
Over 25 U.S. federal agencies have regulations concerning the use of digital and electronic signatures.[15]
Duties also include providing high quality, specialized and practical advice in business-to-business and business-to-consumer arrangements and advising on issues like IT outsourcing arrangements, software and hardware supply and implementation agreements. An information technology attorney contracts for web site developers and consultants in relation to on-line projects. Provides support and maintains confidentiality/know how agreements. Contracts for Internet service providers and data protection advice. An information technology attorney should have a JD degree or a LLM degree with admission to the local state bar.
source-
From Wikipedia, the free encyclopedia
Areas of law
See also: Software law
There is intellectual property in general, including copyright, rules on fair use, and special rules on copy protection for digital media, and circumvention of such schemes. The area of software patents is controversial, and still evolving in Europe and elsewhere.[1]The related topics of software licenses, end user license agreements, free software licenses and open-source licenses can involve discussion of product liability, professional liability of individual developers, warranties, contract law, trade secrets and intellectual property.
In various countries, areas of the computing and communication industries are regulated – often strictly – by government bodies.
There are rules on the uses to which computers and computer networks may be put, in particular there are rules on unauthorized access, data privacy and spamming. There are also limits on the use of encryption and of equipment which may be used to defeat copy protection schemes. The export of Hardware and Software between certain states is also controlled.
There are laws governing trade on the Internet, taxation, consumer protection, and advertising.
There are laws on censorship versus freedom of expression, rules on public access to government information, and individual access to information held on them by private bodies. There are laws on what data must be retained for law enforcement, and what may not be gathered or retained, for privacy reasons.
In certain circumstances and jurisdictions, computer communications may be used in evidence, and to establish contracts. New methods of tapping and surveillance made possible by computers have wildly differing rules on how they may be used by law enforcement bodies and as evidence in court.
Computerized voting technology, from polling machines to internet and mobile-phone voting, raise a host of legal issues.
Some states limit access to the Internet, by law as well as by technical means.
Jurisdiction
Issues of jurisdiction and sovereignty have quickly come to the fore in the era of the Internet.Jurisdiction is an aspect of state sovereignty and it refers to judicial, legislative and administrative competence. Although jurisdiction is an aspect of sovereignty, it is not coextensive with it. The laws of a nation may have extraterritorial impact extending the jurisdiction beyond the sovereign and territorial limits of that nation. This is particularly problematic as the medium of the Internet does not explicitly recognize sovereignty and territorial limitations. There is no uniform, international jurisdictional law of universal application, and such questions are generally a matter of conflict of laws, particularly private international law. An example would be where the contents of a web site are legal in one country and illegal in another. In the absence of a uniform jurisdictional code, legal practitioners are generally left with a conflict of law issue.
Another major problem of cyberlaw lies in whether to treat the Internet as if it were physical space (and thus subject to a given jurisdiction's laws) or to act as if the Internet is a world unto itself (and therefore free of such restraints). Those who favor the latter view often feel that government should leave the Internet community to self-regulate. John Perry Barlow, for example, has addressed the governments of the world and stated, "Where there are real conflicts, where there are wrongs, we will identify them and address them by our means. We are forming our own Social Contract. This governance will arise according to the conditions of our world, not yours. Our world is different".[2] A more balanced alternative is the Declaration of Cybersecession: "Human beings possess a mind, which they are absolutely free to inhabit with no legal constraints. Human civilization is developing its own (collective) mind. All we want is to be free to inhabit it with no legal constraints. Since you make sure we cannot harm you, you have no ethical right to intrude our lives. So stop intruding!"[3] Other scholars argue for more of a compromise between the two notions, such as Lawrence Lessig's argument that "The problem for law is to work out how the norms of the two communities are to apply given that the subject to whom they apply may be in both places at once" (Lessig, Code 190).
With the internationalism of the Internet, jurisdiction is a much more tricky area than before, and courts in different countries have take various views on whether they have jurisdiction over items published on the Internet, or business agreements entered into over the Internet. This can cover areas from contract law, trading standards and tax, through rules on unauthorized access, data privacy and spamming to more political areas such as freedom of speech, censorship, libel or sedition.
Certainly, the frontier idea that the law does not apply in "Cyberspace" is not true. In fact, conflicting laws from different jurisdictions may apply, simultaneously, to the same event. The Internet does not tend to make geographical and jurisdictional boundaries clear, but Internet users remain in physical jurisdictions and are subject to laws independent of their presence on the Internet.[4] As such, a single transaction may involve the laws of at least three jurisdictions:
- the laws of the state/nation in which the user resides,
- the laws of the state/nation that apply where the server hosting the transaction is located, and
- the laws of the state/nation which apply to the person or business with whom the transaction takes place.
In practical terms, a user of the Internet is subject to the laws of the state or nation within which he or she goes online. Thus, in the U.S., Jake Baker faced criminal charges for his e-conduct, and numerous users of peer-to-peer file-sharing software were subject to civil lawsuits for copyright infringement. This system runs into conflicts, however, when these suits are international in nature. Simply put, legal conduct in one nation may be decidedly illegal in another. In fact, even different standards concerning the burden of proof in a civil case can cause jurisdictional problems. For example, an American celebrity, claiming to be insulted by an online American magazine, faces a difficult task of winning a lawsuit against that magazine for libel. But if the celebrity has ties, economic or otherwise, to England, he or she can sue for libel in the British court system, where the standard of "libelous speech" is far lower.
Internet governance is a live issue in international fora such as the International Telecommunication Union (ITU), and the role of the current US-based co-ordinating body, the Internet Corporation for Assigned Names and Numbers (ICANN) was discussed in the UN-sponsored World Summit on the Information Society (WSIS) in December 2003
Regulation of the Internet
The unique structure of the Internet has raised several judicial concerns. While grounded in physical computers and other electronic devices, the Internet is independent of any geographic location. While real individuals connect to the Internet and interact with others, it is possible for them to withhold personal information and make their real identities anonymous. If there are laws that could govern the Internet, then it appears that such laws would be fundamentally different from laws that geographic nations use today.In their essay "Law and Borders -- The Rise of Law in Cyberspace",[6] David R. Johnson and David G. Post offer a solution to the problem of Internet governance. Given the Internet's unique situation, with respect to geography and identity, Johnson and Post believe that it becomes necessary for the Internet to govern itself. Instead of obeying the laws of a particular country, Internet citizens will obey the laws of electronic entities like service providers. Instead of identifying as a physical person, Internet citizens will be known by their usernames or email addresses. Since the Internet defies geographical boundaries, national laws will no longer apply. Instead, an entirely new set of laws will be created to address concerns like intellectual property and individual rights. In effect, the Internet will exist as its own sovereign nation.
Even if the Internet represents a legal paradigm shift, Johnson and Post do not make clear exactly how or by whom the law of the Internet will be enforced. Instead, the authors see market mechanisms, like those that Medieval merchants used, guiding Internet citizens' actions like Adam Smith's invisible hand. Yet, as more physical locations go online, the greater the potential for physical manifestation of electronic misdeeds. What do we do when someone electronically turns off the hospital lights?
However, there is also substantial literature and commentary that the internet is not only "regulable," but is already subject to substantial regulation, both public and private, by many parties and at many different levels. Leaving aside the most obvious examples of internet filtering in nations like China or Saudi Arabia or Iran (that monitor content), there are four primary modes of regulation of the internet described by Lawrence Lessig in his book, Code and Other Laws of Cyberspace:
- Law: Standard East Coast Code, and the most self-evident of the four modes of regulation. As the numerous statutes, evolving case law and precedents make clear, many actions on the internet are already subject to conventional legislation (both with regard to transactions conducted on the internet and images posted). Areas like gambling, child pornography, and fraud are regulated in very similar ways online as off-line. While one of the most controversial and unclear areas of evolving laws is the determination of what forum has subject matter jurisdiction over activity (economic and other) conducted on the internet, particularly as cross border transactions affect local jurisdictions, it is certainly clear that substantial portions of internet activity are subject to traditional regulation, and that conduct that is unlawful off-line is presumptively unlawful online, and subject to similar laws and regulations. Scandals with major corporations led to US legislation rethinking corporate governance regulations such as the Sarbanes-Oxley Act.
- Architecture: West Coast Code: these mechanisms concern the parameters of how information can and cannot be transmitted across the internet. Everything from internet filtering software (which searches for keywords or specific URLs and blocks them before they can even appear on the computer requesting them), to encryption programs, to the very basic architecture of TCP/IP protocol, falls within this category of regulation. It is arguable that all other modes of regulation either rely on, or are significantly supported by, regulation via West Coast Code.
- Norms: As in all other modes of social interaction, conduct is regulated by social norms and conventions in significant ways. While certain activities or kinds of conduct online may not be specifically prohibited by the code architecture of the internet, or expressly prohibited by applicable law, nevertheless these activities or conduct will be invisibly regulated by the inherent standards of the community, in this case the internet "users." And just as certain patterns of conduct will cause an individual to be ostracised from our real world society, so too certain actions will be censored or self-regulated by the norms of whatever community one chooses to associate with on the internet.
- Markets: Closely allied with regulation by virtue of social norms, markets also regulate certain patterns of conduct on the internet. While economic markets will have limited influence over non-commercial portions of the internet, the internet also creates a virtual marketplace for information, and such information affects everything from the comparative valuation of services to the traditional valuation of stocks. In addition, the increase in popularity of the internet as a means for transacting all forms of commercial activity, and as a forum for advertisement, has brought the laws of supply and demand in cyberspace.
Net neutrality
Another major area of interest is net neutrality, which affects the regulation of the infrastructure of the Internet. Though not obvious to most Internet users, every packet of data sent and received by every user on the Internet passes through routers and transmission infrastructure owned by a collection of private and public entities, including telecommunications companies, universities, and governments, suggesting that the Internet is not as independent as Barlow and others would like to believe. This is turning into one of the most critical aspects of cyberlaw and has immediate jurisdictional implications, as laws in force in one jurisdiction have the potential to have dramatic effects in other jurisdictions when host servers or telecommunications companies are affected.Free speech in cyberspace
Article 19 of the Universal Declaration of Human Rights calls for the protection of free expression in all media.In comparison to traditional print-based media, the accessibility and relative anonymity of cyber space has torn down traditional barriers between an individual and his or her ability to publish. Any person with an internet connection has the potential to reach an audience of millions with little-to-no distribution costs. Yet this new form of highly accessible authorship in cyber space raises questions and perhaps magnifies legal complexities relating to the freedom and regulation of speech in cyberspace.
These complexities have taken many forms, three notable examples being the Jake Baker incident, in which the limits of obscene Internet postings were at issue, the controversial distribution of the DeCSS code, and Gutnick v Dow Jones, in which libel laws were considered in the context of online publishing. The last example was particularly significant because it epitomized the complexities inherent to applying one country's laws (nation-specific by definition) to the internet (international by nature). In 2003, Jonathan Zittrain considered this issue in his paper, "Be Careful What You Ask For: Reconciling a Global Internet and Local Law".[7]
In the UK the case of Keith-Smith v Williams confirmed that existing libel laws applied to internet discussions.[8]
In terms of the tort liability of ISPs and hosts of internet forums, Section 230(c) of the Communications Decency Act may provide immunity in the United States.[9]
Internet censorship
Main article: Internet censorship
In many countries, speech through cyberspace has proven to be another means of communication which has been regulated by the government. The Open Net Initiative, whose mission statement is "to investigate and challenge state filtration and surveillance practices" to "...generate a credible picture of these practices," has released numerous reports documenting the filtration of internet-speech in various countries. While China has thus far proven to be the most rigorous in its attempts to filter unwanted parts of the internet from its citizens,[10] many other countries - including Singapore, Iran, Saudi Arabia, and Tunisia - have engaged in similar practices of Internet censorship. In one of the most vivid examples of information control, the Chinese government for a short time transparently forwarded requests to the Google search engine to its own, state-controlled search engines.[11]These examples of filtration bring to light many underlying questions concerning the freedom of speech. For example, does the government have a legitimate role in limiting access to information? And if so, what forms of regulation are acceptable? For example, some argue that the blocking of "blogspot" and other websites in India failed to reconcile the conflicting interests of speech and expression on the one hand and legitimate government concerns on the other hand.[citation needed]
The Creation of Privacy in Cyber-Law
Warren and Brandeis
At the close of the 19th Century, concerns about privacy captivated the general public, and led to the 1890 publication of Samuel Warren and Louis Brandeis: "The Right to Privacy".[12] The vitality of this article can be seen today, when examining the USSC decision of Kyllo v. United States, 533 U.S. 27 (2001) where it is cited by the majority, those in concurrence, and even those in dissent.[13]The motivation of both authors to write such an article is heavily debated amongst scholoars, however, two developments during this time give some insight to the reasons behind it. First, the sensationalistic press and the concurrent rise and use of "yellow journalism" to promote the sale of newspapers in the time following the Civil War brought privacy to the forefront of the public eye. The other reason that brought privacy to the forefront of public concern was the technological development of "instant photography". This article set the stage for all privacy legislation to follow during the 20 and 21st Centuries.[12]
Reasonable Expectation of Privacy Test and emerging technology
In 1967, the United States Supreme Court decision in Katz v United States, 389 U.S. 347 (1967) established what is known as the Reasonable Expectation of Privacy Test to determine the applicability of the Fourth Amendment in a given situation. It should be noted that the test was not noted by the majority, but instead it was articulated by the concurring opinion of Justice Harlan. Under this test, 1) a person must exhibit an "actual (subjective) expectation of privacy" and 2) "the expectation [must] be one that society is prepared to recognize as 'reasonable.'" [12]Privacy Act of 1974
Inspired by the Watergate scandal, the United States Congress enacted the Privacy Act of 1974 just four months after the resignation of then President Richard Nixon. In passing this Act, Congress found that "the privacy of an individual is directly affected by the collection, maintenance, use, and dissemination of personal information by Federal agencies" and that "the increasing use of computers and sophisticated information technology, while essential to the efficient operations of the Government, has greatly magnified the harm to individual privacy that can occur from any collection, maintenance, use, or dissemination of personal information." [12] For More Information See: Privacy Act of 1974Foreign Intelligence Surveillance Act of 1978
Codified at 50 U.S.C. §§ 1801-1811, this act establishes standards and procedures for use of electronic surveillance to collect "foreign intelligence" within the United States. §1804(a)(7)(B). FISA overrides the Electronic Communications Privacy Act during investigations when foreign intelligence is "a significant purpose" of said investigation. 50 U.S.C. § 1804(a)(7)(B) and §1823(a)(7)(B). Another interesting result of FISA, is the creation of the Foreign Intelligence Surveillance Court (FISC). All FISA orders are reviewed by this special court of federal district judges. The FISC meets in secret, with all proceedings usually also held from both the public eye and those targets of the desired surveillance.[12] For more information see: Foreign Intelligence Act(1986) Electronic Communication Privacy Act
The ECPA represents an effort by the United States Congress to modernize federal wiretap law. The ECPA amended Title III (see: Omnibus Crime Control and Safe Streets Act of 1968) and included two new acts in response to developing computer technology and communication networks. Thus the ECPA in the domestic venue into three parts: 1) Wiretap Act, 2) Stored Communications Act, and 3) The Pen Register Act.[12]-
-
- Types of Communication
-
-
- Wire Communication: Any communication containing the human voice that travels at some point across a wired medium such as radio, satellite or cable.
- Oral Communication:
- Electronic Communication
-
- The Wiretap Act: For Information See Wiretap Act
- The Stored Communications Act: For information see Stored Communications Act
- The Pen Register Act: For information see Pen Register Act
-
(1994) Driver's Privacy Protection Act
The DPPA was passed in response to states selling motor vehicle records to private industry. These records contained personal information such as name, address, phone number, SSN, medical information, height, weight, gender, eye color, photograph and date of birth. In 1994, Congress passed the Driver's Privacy Protection (DPPA), 18 U.S.C. §§ 2721-2725, to cease this activity.[12] For More Information See: Driver's Privacy Protection Act(1999) Gramm-Leach-Bliley Act
-This act authorizes widespread sharing of personal information by financial institutions such as banks, insurers, and investment companies. The GLBA permits sharing of personal information between companies joined together or affiliated as well as those companies unaffiliated. To protect privacy, the act requires a variety of agencies such as the SEC, FTC, etc. to establish "appropriate standards for the financial institutions subject to their jurisdiction" to "insure security and confidentiality of customer records and information" and "protect against unauthorized access" to this information. 15 U.S.C. § 6801.[12] For More Information See: Gramm-Leach-Bliley Act(2002) Homeland Security Act
-Passed by Congress in 2002, the Homeland Security Act, 6 U.S.C. § 222, consolidated 22 federal agencies into what is commonly known today as the Department of Homeland Security (DHS). The HSA, also created a Privacy Office under the DoHS. The Secretary of Homeland Security must "appoint a senior official to assume primary responsibility for privacy policy." This privacy official's responsibilities include but are not limited to: ensuring compliance with the Privacy Act of 1974, evaluating "legislative and regulatory proposals involving the collection, use, and disclosure of personal information by the Federal Government", while also preparing an annual report to Congress. [12]For More Information See: Homeland Security Act
(2004) Intelligence Reform and Terrorism Prevention Act
-This Act mandates that intelligence be "provided in its most shareable form" that the heads of intelligence agencies and federal departments "promote a culture of information sharing." The IRTPA also sought to establish protection of privacy and civil liberties by setting up a five-member Privacy and Civil Liberties Oversight Board. This Board offers advice to both the President of the United States and the entire executive branch of the Federal Government concerning its actions to ensure that the branch's information sharing policies are adequately protecting privacy and civil liberties.[12] For More Information See: Intelligence Reform and Terrorism Prevention ActLegal enactments - examples
The Computer Misuse Act 1990 [1], enacted by Great Britain on 29 June 1990, and which came into force on 29 August 1990, is an example of one of the earliest of such legal enactments. This Act was enacted with an express purpose of making "provision for securing computer material against unauthorised access or modification." Certain major provisions of the Computer Misuse Act 1990 relate to:- "unauthorised access to computer materials",
- "unauthorised access with intent to commit or facilitate the commission of further offences", and
- "unauthorised modification of computer material."
The CMA 1990 has many weaknesses, the most notable is its' inability to cater for, or provide suitable protection against a host of high tech attacks/crimes which have became more prevalent in the last decade. Certain attacks such as DDOS and BOTNET attacks can not be effectively brought to justice under the CMA. This ACT has been under review for a number of years. Computer crimes such as electronic theft are usually prosecuted in the UK under the legislation that caters for traditional theft (Theft Act 1968), because the CMA is so ineffective.
A recent example of Information Technology Law is India's Information Technology Act 2000, which became effective from 17 October 2000. This Act applies to whole of India, and its provisions also apply to any offence or contravention, committed even outside the territorial jurisdiction of Republic of India, by any person irrespective of his nationality. In order to attract provisions of this Act, such an offence or contravention should involve a computer, computer system, or computer network located in India. The IT Act, 2000 provides an extraterritorial applicability to its provisions by virtue of section 1(2) read with section 75.
India's Information Technology Act 2000 has tried to assimilate legal principles available in several such laws (relating to Information Technology) enacted earlier in several other countries, as also various guidelines pertaining to Information Technology Law. The government of India appointed an Expert Committee to suggest suitable amendments into the existing IT Act, 2000. The amendments suggested by the Committee were severely criticised on various grounds. The chief among them was the dilution of criminal sanctions under the proposed amendments. These amendments, perhaps with some modifications, have been approved by the Cabinet in India on 16 October 2006 and very soon the amendments will be laid down before the Indian Parliament for suitable legislation.
The IT Act, 2000 needs an overall haul keeping in mind the contemporary standards and requirements and the Indian law in this regard is lagging far behind. In the absence of proper law in place, the only recourse is to rely upon the traditional criminal law of India, i.e. Indian Penal Code, 1860 (IPC)[1]that is highly insufficient for cyber crimes in India. Alternatively, a purposive, updating and organic interpretation of the existing provisions of the IT Act, 2000 and IPC by the judiciary must be tried.
The IT Act, 2000 requires a purposive and updating amendment initiative as many contemporary crimes and contraventions are missing from it. Besides, there is an emergent need of introducing the concept of cyber forensics in India.
Many Asian and Middle Eastern nations use any number of combinations of code-based regulation (one of Lessig's four methods of net regulation) to block material that their governments have deemed inappropriate for their citizens to view. PRC, Saudi Arabia and Iran are three excellent examples of nations that have achieved high degrees of success in regulating their citizens access to the Internet.[10][14]
[edit] Electronic Signature Laws
- U.S. - Electronic Signatures in Global and National Commerce Act
- U.S. - Uniform Electronic Transactions Act - adopted by 46 states
- U.S. - Digital Signature And Electronic Authentication Law
- U.S. - Government Paperwork Elimination Act (GPEA)
- U.S. - The Uniform Commercial Code (UCC)
- UK - s.7 Electronic Communications Act 2000
- European Union - Electronic Signature Directive (1999/93/EC)
- Mexico - E-Commerce Act [2000]
- Costa Rica - Digital Signature Law 8454 (2005)
- Australia - Electronic Transactions Act 1999 (Cth) (also note that there is State and Territory mirror legislation)
Information Technology Law
- Florida Electronic Security Act
- Illinois Electronic Commerce Security Act
- Texas Penal Code - Computer Crimes Statute
- Maine Criminal Code - Computer Crimes
- Singapore Electronic Transactions Act
- Malaysia Computer Crimes Act
- Malaysia Digital Signature Act
- UNCITRAL Model Law on Electronic Commerce
- Information Technology Act 2000 of India
Information Technology Guidelines
- ABA Digital Signature Guidelines
- United States Office of Management and Budget
Enforcement agencies
The Information Technology Laws of various countries, and / or their criminal laws generally stipulate enforcement agencies, entrusted with the task of enforcing the legal provisions and requirements.United States Federal Agencies
Many United States federal agencies oversee the use of information technology. Their regulations are promulgated in the Code of Federal Regulations of the United States.Over 25 U.S. federal agencies have regulations concerning the use of digital and electronic signatures.[15]
India
A live example of such an enforcement agency is Cyber Crime Police Station, Bangalore [2], India's first exclusive Cyber Crime enforcement agency.- Other examples of such enforcement agencies include:
- Cyber Crime Investigation Cell [3] of India's Mumbai Police.
- Cyber Crime Police Station[4] of the state Government of Andhra Pradesh, India. This Police station has jurisdiction over the entire state of Andhra Pradesh, and functions from the Hyderabad city.
- In South India, the Crime Branch of Criminal Investigation Department, Tamilnadu police, India, has a Cyber Crime Cell at Chennai.
- In East India, Cyber Crime Cells have been set up by the Kolkata Police as well as the Criminal Investigation Department, West Bengal.
Information Technology Lawyer
An information technology attorney is a professional who handles a variety of legal matters related to IT. The attorney gets involved in drafting, negotiating, and interpreting agreements in the areas of software licensing and maintenance, IT consulting, e-commerce, web site hosting and development, and telecommunications agreements, as well as handling dispute resolution and assisting with the client's Internet domain name portfolio. An information technology attorney works with engineering, IT, and other business units and ensures that customer information gathered by company is collected, stored and used in compliance with privacy policies and applicable laws.Duties also include providing high quality, specialized and practical advice in business-to-business and business-to-consumer arrangements and advising on issues like IT outsourcing arrangements, software and hardware supply and implementation agreements. An information technology attorney contracts for web site developers and consultants in relation to on-line projects. Provides support and maintains confidentiality/know how agreements. Contracts for Internet service providers and data protection advice. An information technology attorney should have a JD degree or a LLM degree with admission to the local state bar.
source-
From Wikipedia, the free encyclopedia
Constitution, Government & Legislation
Sri Lanka has a Republican form of Government. The current constitution was adopted in 1978. Universal suffrage began in 1931. The age of voting is 18 and above.
The executive branch consists of the President and a Cabinet of Ministers headed by the President. The President, who is elected directly by the people for a six-year term (maximum two terms), is Head of the State and Head of Government. The Prime Minister is appointed by the President from among the Members of Parliment.
The legislature is called Parliament and consists of 225 representatives (from whom Ministers are appointed by the President). The Members of Parliament (or MP's) are elected for 6 year terms at periodical General Elections through a system of proportional representation.
The Sri Lankan Parliament is a unicameral assembly.
Source: Government of Sri Lanka
Courts & Judgments
Sri Lanka's judiciary consists of a supreme court, a court of appeals, a high court, and a number of subordinate courts. Sri Lanka's legal system reflects diverse cultural influences. Criminal law is fundamentally British. Basic civil law is Roman-Dutch. Laws pertaining to marriage, divorce, inheritance are communal.
Source: U.S. Department of State
The executive branch consists of the President and a Cabinet of Ministers headed by the President. The President, who is elected directly by the people for a six-year term (maximum two terms), is Head of the State and Head of Government. The Prime Minister is appointed by the President from among the Members of Parliment.
The legislature is called Parliament and consists of 225 representatives (from whom Ministers are appointed by the President). The Members of Parliament (or MP's) are elected for 6 year terms at periodical General Elections through a system of proportional representation.
The Sri Lankan Parliament is a unicameral assembly.
Source: Government of Sri Lanka
Courts & Judgments
Sri Lanka's judiciary consists of a supreme court, a court of appeals, a high court, and a number of subordinate courts. Sri Lanka's legal system reflects diverse cultural influences. Criminal law is fundamentally British. Basic civil law is Roman-Dutch. Laws pertaining to marriage, divorce, inheritance are communal.
Source: U.S. Department of State
Criminal Justice System Of Sri Lanka
Sri Lanka, known as Ceylon until 1972, is a tropical island nation in the Indian Ocean lying off the southeast coast of peninsular India. It has the total land area of 65 607 square kilometres, and the total population of 16.1 million (as of 1986). The annual population growth rate is estimated at 1.7%.
The two principal linguistic (racial) groups in Sri Lanka are the Sinhalese (74%) and the Tamils (18.2%). Also, approximately 7.1% of the population are of the Arabic origin, who are mentioned as the Sri Lankan Moors. As for the religious groups, approximately 69.3% of the people are Buddhists, most of whom are the Sinhalese, and 15.5% are Hindus, who are mostly the Tamils. Besides, 7.6% are Muslims and 6.8% are Christians of various denominations.
As for the structure of the government, Sri Lanka became independent in 1948, and is now an independent republic within the commonwealth nations. The national law making body is the Parliament, formerly called the National State Assembly or the House of Representatives, which is, as of 1986, composed of 168 seats. The members of the Parliament are elected by the Sri Lankan citizens aged 18 years or older. The head of the Republic is represented by the President, who is directly elected by the citizens aged 18 years or older. The term of the President is also for 6 years.
The cabinet is led by the Prime Minister who is appointed by the President from among the Parliament members. As of 1986, the cabinet is composed of 49 ministerial posts, excluding the Prime Minister.
The entire nation is divided into 25 administrative regions as of 1986. Each region is governed by the Government Agent, who is appointed by the central government.
The economy of the country is still precariously dependent on the exports of its plantation products such as tea, rubber and coconuts. GNP per capita was US$354 as of 1986. The unit of the national currency is Rupee (Re or Rs).
BASIS OF CRIMINAL LAW AND PROCEDURE
According to the colonisation by the British Empire, the British laws were gradually applied throughout the nation. However, due to the unsatisfactory state of the then existing criminal laws which led to a state of uncertainty, the Penal Code of Sri Lanka, then Ceylon, was first enacted in 1833. It is said that the Law was based on the corresponding Indian law. This Penal Code holds good up to now with several amendments.
The Penal Code embodies categories of offences, the punishments to which offenders are liable under the Code and general exceptions to criminal liability.
The broad categories of offences are: offences against the state, offences against public tranquillity, offences affecting the human body, offences against property, offences relating to religion, sexual and marital offences and offences relating to coins and government stamps.
Punishments prescribed under the Penal Code are: death, imprisonment (simple and rigourous), whipping, forfeiture of property and fine.
The principal general exceptions to criminal liability recognised by the Code are: insanity, intoxication, necessity, duress and private defence.
The minimum age of criminal responsibility is eight years. A child under eight years of age is considered incapable of possessing `mens rea'. Those over eight years but under twelve years are not punished unless they have attained sufficient maturity.
As for criminal procedure, the first law of this kind was the Criminal Procedure Code of 1882, which was replaced by the Criminal Procedure Ordinance of 1898. In 1974, the Administration of Justice Law was introduced but it was only operated for 4 years. The present law is the Code of Criminal Procedure Act, which was enacted in 1979. Also, the Judicature Act was enacted in 1978, which provides the basis of judiciary administration.
Among other significant crime-related special legislations are: the Poisons, Opium and Dangerous Drugs Ordinance, the Explosive Ordinance, the Firearm Ordinance, the Offensive Weapons Act, the Prevention of Terrorism Act, and the Offences Against Aircraft Act.
As for the courts system, the procedure and functions of the criminal courts are today governed by the Code of Criminal Procedure Act and the Judicature Act. The Magistrate's Court is the criminal court to deal with most of the offences, and the Primary Court also deals with some minor criminal cases.
According to the law, certain grave offences such as murder, attempted murder and rape are tried in the High Court. A case in the High Court is handled by judge and jury or by judge alone. The jury is composed of 7 jurors, elected at random from the jury list.
The appeal or the second instance of criminal trial is conducted by the Court of Appeal. The Supreme Court exercise final appellate jurisdiction as well as special jurisdiction for alleged violations of fundamental rights and freedom guaranted under the Constitution. The Supreme Court consists of 11 justices including the Chief Justice.
The justices of the Supreme Court and the judges of the Appeal and High Courts are appointed by the President; the judges of the lower courts are appointed by the Judicial Service Commission. The Commission is the judiciary administrative body which is composed of three Supreme Court Justices headed by the Chief Justice.
Most of the prosecution against criminal cases are conducted by the investigation officers, namely the police themselves. However, as far as those serious offences to be tried in the High Court are concerned, or whenever it deems necessary, the public prosecutors, who are entitled as the State Councils or the State Attorneys, shall prosecute the cases. These public prosecutors are under the Attorney-General's Department and supervised by the Attorney-General, who is appointed by the President.
SANCTIONS
Punishments prescribed under the Penal Code are: death, imprisonment (simple and rigourous), whipping, forfeiture of property and fine. According to the Third United Nations Survey however, statistical data are not available with regard to death penalty, whipping and property sanctions such as fine and forfeiture.
OVERCROWDING IN PRISONS
It was recorded that, in 1986, 384 unconvicted persons per 100 000 population and 91 convicted persons were admitted into prisons. The number of admissions of the unconvicted inmates was more than 4 times larger than that of the convicted inmates. In terms of the daily average population, the number of unconvicted inmates was 1.3 times larger than that of the convicted inmates. It is therefore considered that overcrowding in prisons is mainly due to the large number of unconvicted inmates, or remand prisoners.
It is said that the reason for overcrowding of remand prisoners is mostly due to the delays in bringing the offenders to trial, which is commonly known as `court delays' in Sri Lanka. It is also mentioned that inadequate use of bail provisions have contributed to the increase in the remand population. It is common to see a large number of inmates detained in jails for their inability to furnish the bail ordered to them.
Another cause of overcrowding in prisons is the large portion of short- term prisoners. In fact, it is found that of persons convicted to prisons in 1987, 61.6% were sentenced to less than 6 months. Reportedly, still another reason for the increase of prison population is the large number of persons admitted into prison for the default of payment of their fines.
Therefore, various countermeasures against prison overcrowding are researched and studied jointly by agencies in the field of criminal justice in Sri Lanka. Among the suggested countermeasures are: limited use of remand in prisons, increased use of release on personal bond, modification of penal sanctions, active use of alternatives such as probation and community service order.
FACILITIES FOR JUVENILE DELINQUENTS AND PROTECTION OF JUVENILES
There are various facilities for the protection and rehabilitation of delinquent and pre-delinquent juveniles. It could be summarised as follows:
In order to facilitate the rehabilitation of delinquents and pre- delinquent juveniles, whose home circumstances are disorganised, the legal provision exists for the approval of private residences as accommodation where necessary care and protection may be provided for these delinquent juveniles. There are now over 200 voluntary homes in Sri Lanka and the government pays monthly `per capita grant' for their services.
There are also day-care centres for orphans, destitutes or deserted children, with the assistance granted by the Department of Probation and Child Care Services.
There are institutions run by the government and other voluntary organisations, which provide protection especially to the juveniles who fall into the category of `Protection Service'. There are state-run and voluntary institutions throughout the nation.
-----
SOURCE:-
Brought to you by - The 'Lectric Law Library
The Net's Finest Legal Resource For Legal Pros & Laypeople Alike.
http://www.lectlaw.com
The two principal linguistic (racial) groups in Sri Lanka are the Sinhalese (74%) and the Tamils (18.2%). Also, approximately 7.1% of the population are of the Arabic origin, who are mentioned as the Sri Lankan Moors. As for the religious groups, approximately 69.3% of the people are Buddhists, most of whom are the Sinhalese, and 15.5% are Hindus, who are mostly the Tamils. Besides, 7.6% are Muslims and 6.8% are Christians of various denominations.
As for the structure of the government, Sri Lanka became independent in 1948, and is now an independent republic within the commonwealth nations. The national law making body is the Parliament, formerly called the National State Assembly or the House of Representatives, which is, as of 1986, composed of 168 seats. The members of the Parliament are elected by the Sri Lankan citizens aged 18 years or older. The head of the Republic is represented by the President, who is directly elected by the citizens aged 18 years or older. The term of the President is also for 6 years.
The cabinet is led by the Prime Minister who is appointed by the President from among the Parliament members. As of 1986, the cabinet is composed of 49 ministerial posts, excluding the Prime Minister.
The entire nation is divided into 25 administrative regions as of 1986. Each region is governed by the Government Agent, who is appointed by the central government.
The economy of the country is still precariously dependent on the exports of its plantation products such as tea, rubber and coconuts. GNP per capita was US$354 as of 1986. The unit of the national currency is Rupee (Re or Rs).
BASIS OF CRIMINAL LAW AND PROCEDURE
According to the colonisation by the British Empire, the British laws were gradually applied throughout the nation. However, due to the unsatisfactory state of the then existing criminal laws which led to a state of uncertainty, the Penal Code of Sri Lanka, then Ceylon, was first enacted in 1833. It is said that the Law was based on the corresponding Indian law. This Penal Code holds good up to now with several amendments.
The Penal Code embodies categories of offences, the punishments to which offenders are liable under the Code and general exceptions to criminal liability.
The broad categories of offences are: offences against the state, offences against public tranquillity, offences affecting the human body, offences against property, offences relating to religion, sexual and marital offences and offences relating to coins and government stamps.
Punishments prescribed under the Penal Code are: death, imprisonment (simple and rigourous), whipping, forfeiture of property and fine.
The principal general exceptions to criminal liability recognised by the Code are: insanity, intoxication, necessity, duress and private defence.
The minimum age of criminal responsibility is eight years. A child under eight years of age is considered incapable of possessing `mens rea'. Those over eight years but under twelve years are not punished unless they have attained sufficient maturity.
As for criminal procedure, the first law of this kind was the Criminal Procedure Code of 1882, which was replaced by the Criminal Procedure Ordinance of 1898. In 1974, the Administration of Justice Law was introduced but it was only operated for 4 years. The present law is the Code of Criminal Procedure Act, which was enacted in 1979. Also, the Judicature Act was enacted in 1978, which provides the basis of judiciary administration.
Among other significant crime-related special legislations are: the Poisons, Opium and Dangerous Drugs Ordinance, the Explosive Ordinance, the Firearm Ordinance, the Offensive Weapons Act, the Prevention of Terrorism Act, and the Offences Against Aircraft Act.
As for the courts system, the procedure and functions of the criminal courts are today governed by the Code of Criminal Procedure Act and the Judicature Act. The Magistrate's Court is the criminal court to deal with most of the offences, and the Primary Court also deals with some minor criminal cases.
According to the law, certain grave offences such as murder, attempted murder and rape are tried in the High Court. A case in the High Court is handled by judge and jury or by judge alone. The jury is composed of 7 jurors, elected at random from the jury list.
The appeal or the second instance of criminal trial is conducted by the Court of Appeal. The Supreme Court exercise final appellate jurisdiction as well as special jurisdiction for alleged violations of fundamental rights and freedom guaranted under the Constitution. The Supreme Court consists of 11 justices including the Chief Justice.
The justices of the Supreme Court and the judges of the Appeal and High Courts are appointed by the President; the judges of the lower courts are appointed by the Judicial Service Commission. The Commission is the judiciary administrative body which is composed of three Supreme Court Justices headed by the Chief Justice.
Most of the prosecution against criminal cases are conducted by the investigation officers, namely the police themselves. However, as far as those serious offences to be tried in the High Court are concerned, or whenever it deems necessary, the public prosecutors, who are entitled as the State Councils or the State Attorneys, shall prosecute the cases. These public prosecutors are under the Attorney-General's Department and supervised by the Attorney-General, who is appointed by the President.
SANCTIONS
Punishments prescribed under the Penal Code are: death, imprisonment (simple and rigourous), whipping, forfeiture of property and fine. According to the Third United Nations Survey however, statistical data are not available with regard to death penalty, whipping and property sanctions such as fine and forfeiture.
OVERCROWDING IN PRISONS
It was recorded that, in 1986, 384 unconvicted persons per 100 000 population and 91 convicted persons were admitted into prisons. The number of admissions of the unconvicted inmates was more than 4 times larger than that of the convicted inmates. In terms of the daily average population, the number of unconvicted inmates was 1.3 times larger than that of the convicted inmates. It is therefore considered that overcrowding in prisons is mainly due to the large number of unconvicted inmates, or remand prisoners.
It is said that the reason for overcrowding of remand prisoners is mostly due to the delays in bringing the offenders to trial, which is commonly known as `court delays' in Sri Lanka. It is also mentioned that inadequate use of bail provisions have contributed to the increase in the remand population. It is common to see a large number of inmates detained in jails for their inability to furnish the bail ordered to them.
Another cause of overcrowding in prisons is the large portion of short- term prisoners. In fact, it is found that of persons convicted to prisons in 1987, 61.6% were sentenced to less than 6 months. Reportedly, still another reason for the increase of prison population is the large number of persons admitted into prison for the default of payment of their fines.
Therefore, various countermeasures against prison overcrowding are researched and studied jointly by agencies in the field of criminal justice in Sri Lanka. Among the suggested countermeasures are: limited use of remand in prisons, increased use of release on personal bond, modification of penal sanctions, active use of alternatives such as probation and community service order.
FACILITIES FOR JUVENILE DELINQUENTS AND PROTECTION OF JUVENILES
There are various facilities for the protection and rehabilitation of delinquent and pre-delinquent juveniles. It could be summarised as follows:
In order to facilitate the rehabilitation of delinquents and pre- delinquent juveniles, whose home circumstances are disorganised, the legal provision exists for the approval of private residences as accommodation where necessary care and protection may be provided for these delinquent juveniles. There are now over 200 voluntary homes in Sri Lanka and the government pays monthly `per capita grant' for their services.
There are also day-care centres for orphans, destitutes or deserted children, with the assistance granted by the Department of Probation and Child Care Services.
There are institutions run by the government and other voluntary organisations, which provide protection especially to the juveniles who fall into the category of `Protection Service'. There are state-run and voluntary institutions throughout the nation.
-----
SOURCE:-
Brought to you by - The 'Lectric Law Library
The Net's Finest Legal Resource For Legal Pros & Laypeople Alike.
http://www.lectlaw.com
Wednesday, December 15, 2010
Culpable homicide and Murder
Culpable homicide
There is a radical difference between the offence of culpable homicide and murder. The causing of death is common to both offences. The penal code regards culpable homicide as a generic crime and makes murder a special offence, falling under the general category of culpable homicide. In other words every culpable homicide should either be a murder or a culpable homicide not amounting to murder. Culpable homicide (C.H.)is is defined in section 293 ,according to that it requires an act that ends with causing of death of another person. This section emphasised 3 mental elements.
1. Doing an act with the intention of causing death.
2. Doing an act with the intention of causing such bodily injury as is likely to cause death.
3. Doing an act with the knowledge that he is likely by such act to cause death.
The intention to cause death and intention to cause bodily injury is determined by matters of fact.
Eg:-
*if a man cuts the throat of another with a scythe ,that time intention is clear, that he did that act with the intention to commit that murder.
*but if one person hits another with a club, and that person dies as a result of the blow, it might be difficult to prove the intention.
In terms of section 293 if a person causes death of another it would be culpable homicide.
To determine whether such culpable homicide is murder or a culpable homicide not amounting to murder, we have to pay attention on the explanations in section 293.
Explanation-01 Acceleration of death
*Causing bodily injury
*To a person labouring under a dieses, disorder or infirmity.
*There by accelerates the death.
*Deemed to have caused the death.
Explanation-02 Absence of proper remedies.
*Death due to bodily injury.
*Even through proper remedies and skilful treatments have.
*Prevented the death.
*Deemed to have caused the death.
Explanation-03 Unborn children.
*Child in mother’s womb causing death is not homicide.
*If any part of the child is brought forth.
*Even though the child has not breathed or completely born.
*Causing death of a living child.
*May amount to causing culpable homicide
MURDER
According to the section 294 of the penal code, causing death of a person is regarded as a murder. All murders are included in culpable homicide. Therefore all methods laid down in section 294 should also be stated in section 293.therefore if a person commits the death of another person according to one of the methods described in section 294 he commits murder. If the death of that person caused in the manner not laid down in the section 294,but it is still within the range stated in section 293.it is regarded as culpable homicide not amounting to murder.
The ways in which a murder could be committed in terms of section-294
1. if a act by which the death is caused with the intention of causing death.
Here in this situation the mental element is intention.the intention to cause death should be determined by the facts of the circumstances.
Eg:-
Weapon used the number of injuries caused, the force used to cause these injuries should all be taken in to account to prove the intention to commit murder.
In some situations words spoken the during the time of committing the act is also considered
Eg:-shooting at a person’s chest with a gun
Stabbing a person’s chest several times with a knife
The first limb of the section 294 is similar to the 1st part of section 293 which states that ‘’By doing an act with the intention of causing death’’
If its done with the intention of causing such bodily injury as an offender knows to be likely to cause the death of the person to whom the harm is caused.
This death with the situation of causing his death with bodily injuries that is likely to cause such person’s death.
In this situation the person who subjected to bodily injuries is not a normal healthy person, but rather a person suffering from a physical disability The injuries caused are not sufficient to cause the death of a normal healthy person. however the offender in this instance knowing that the victim is suffering from physical disability and causes bodily injury and he knows that it would be likely to cause the death of the person to whom such harm is caused.
In case king vs kolonda a similar situation was discussed.
In this case the person died due to a slight kick which would otherwise a not cause the death of a normal person.
It was latter revealed that he dies out of the bursting of the spleen and he had a enlarged spleen. However the defendant was not aware of this then the court held that this does not fall under the 2nd limb of section 294 but he should be guilty of causing grievous hurt.The 3rd limb of section 294 has been subjected much discussion.This should be compared with the 2nd part of section 293.
The 3rd of the section is as follows:
‘’Injury sufficient, in the ordinary causes of nature to cause death’’
2nd part of the section 293 status;
‘’Injury likely to cause death’’
Both these instances mean the causing of two different injuries. As stated in section 294 if a person who with the intention of causing bodily harm which is sufficient in the ordinary course of nature to cause death. Causes the death in this manner laid down in section 294 is guilty for the offence of murder. A person who with the intention of causing injury which is likely to cause death causes, causes the death of another by such injury is guilty of culpable homicide not amounting to murder.
It is important to distinguish between these two injuries. This was discussed in
King vs Mendis Gratien J. Who examined the difference between these two injuries held that ‘bodily harm which is sufficient in the ordinary course of nature to cause death are injuries which have a very a high tendency/probability to cause death.
(Limb 3 of section 294)Although injuries likely to cause death as described in the 2nd part of section 293 may result in a death, the probability of such injuries causing death is not high.
It should be remembered that even if the injury is ‘’bodily harm ‘which is sufficient in the ordinary cause of nature to cause’’ (294 3rd limb) or if is an injury likely to cause death’’ (part 2of section293) both injuries could result in causing the death of the injured person. Also in both situations the injured party could be saved from dying by medical treatment.
However in certain instances the doctors describes that certain injuries would definitely result in the death of the injured person such injuries do not fall into these two categories.
Eg:- injury that divides the brain into two.
It is important to remember the situation in the 4th limb of section 294 .it is the only instance in which a person could be found guilty for the offence of murder on the bases of knowledge.(the mental element being knowledge)in terms of this section a high degree of knowledge is necessary to comment such a murder.
One should keep in mind that this section deals with a high degree of knowledge.
Therefore the risk of death occurring should be very high. In this situation the offender does not have the intention to cause the death. However he/she should be of a high degree. Therefore there is no excuse for the committing of such act.
Normally the charge of murder is not brought in a case relating to an accident. But in the ‘’Gangalder Train Accident Case ‘the driver who was the defendant was accused of murder under the 4th limb of section294.
Section 294 lays down the methods according to which a murder is caused. Therefore if a person causes the death of another in any of these methods that is regarded as murder. However these provisions are subject to certain exceptions;
In a situation where such exceptions apply even if the death of a person is accused in any of the methods in section 294 by reason of that exception the offender would be found guilty for culpable homicide not amounting to murder.
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