Friday, December 28, 2012

People tend to think of law as only criminal proceedings, imagining that all lawyers either defend or prosecute those charged with murder, assault, theft or some other crime. This is misconception. In reality most of legal practice does not involve criminal law. Most cases before the courts are civil actions, i.e. to do with disputes over property such as ownership of land, matters relating to marriage such as divorce and the custody of children, contracts to buy and sell goods, road traffic accidents where victims clam compensation for injuries from negligent drivers and so on.

What is Crime? A crime is some form of attack on, or on the property of, a member or members of the public. Criminal law is hence aimed at punishing those who commit such attacks. Most of the criminal offenses in Sri Lanka are contained and defined in the Penal Code. They include the most serious offenses such as murder, rape and robbery, though theft and causing simple (minor) hurt, down to threatening gestures (Which are defined as “assault”).

Civil law deals with relationships between individuals. It consists of many divisions and subdivisions. Some of the major ones are listed below.

  • a)     Law of Property. This includes ownership and other rights over land other property. In Sri Lanka the bulk of the business of the court is to do with land law, in particular, actions to partition jointly owned land and actions for rent and ejectment by landlords wishing to rid themselves of unwanted tenants.

  • b)     Law of contract. This deals with any form of binding agreement between persons, and often has to do with agreements to buy and sell goods or services.

  • c)      Mercantile Law. Mercantile Law governs a variety of commercial and business relationships, and includes company law, insurance law and shipping law.

  • d)     Law of Delict or Tort. A Delict or tort is a wrong committed by a person against another by a breach of some duty, and resulting in harm to the other person. It gives rise to an action for damages for the loss or injury caused. A person injuring another in a road traffic accident by negligent driving would be liable under delictual law.

  • e)     Family Law. The law regarding marriage, separation and divorce, and the parent child relationship, fall into this category.

  • f)       Labour or Industrial Law. This involves the relationship between employer and employee and their rights and responsibilities vis-à-vis. each other. Cases of alleged unlawful termination are the most common in this area.

Seeing law as divided into two branches, civil and criminal, still does not provide the whole picture. There is another very important area of law, namely constitutional and administrative law. Constitutional law deals with a country’s Constitution, which provides the framework of government within that country. Administrative law is concerned with decisions taken in government administration which affect rights of individuals.

“The law relating to the organization, powers, liabilities and duties of the various administrative authorities, including the control of their powers, is known as Administrative Law.” Example of matters falling within administrative law are decisions by administrative tribunals such as the Rent Board of Review and decisions to acquire land by the Land Reform Commission and other State agencies under specific laws. Administrative and constitutional laws are often classed together since they both deal with government action.

The rights and freedoms of individuals in a democratic society are generally enshrined and protected in a country’s Constitution. A person’s right to be treated equally and not to be discriminated against because of his or her race, religion, sex or political opinion, his or her right TO speak and move about freely and to be free from torture and wrongful arrest are some of the crucial rights recognized and safeguarded in the Sri Lankan Constitution, and in most Constitutions of the world.

Another method of classifying law is to divide it as “public” and “private” law. Criminal, constitutional and administrative law is classified as public law. It is easier to see why the latter two would be considered as public, since they deal with “public” relationships, i.e. between the State and individuals, as opposed to relationships between two (or more) private person. In the case of the criminal law, although it deal with wrongs committed by individuals against others, the impact of crime on the community is regarded as so serious that it is treated as an offence against the State. It is the State that usually takes action against (or prosecutes) the wrongdoer and punishes him or her. Because of this public element criminal law also falls within the public law category.

Private law on the other hand refers to disputes between individuals. This category therefore consists of all civil actions. Private law can be used as another term for civil law. Although this branch of the law deals with matters between private persons it is not untouched by State intervention. The laws which govern and regulate these matters are passed by the State (as are all laws) and they are heard before court set up by the State.

However the private element of the civil law is brought out by the fact that civil actions are between private parties. The affected individual institutes the case against the individual whose action he or she is complaining about. The State or any State agency or official need not be a party. In contrast criminal proceeding generally are instituted by the State, while in the constitutional and administrative law cases the State, or a government department or other institution or official is made a respondent (i.e. one of the parties against whom the case is taken).

The purposes of the civil and criminal law are different. Criminal law aims to punish the offender, whereas in civil law the object is to compensate the affected party.
A vital distinction between criminal and civil case is the burden of proof in each. In a criminal case the accused must be proved guilty beyond reasonable doubt. In a civil case however the facts alleged need only be proved on a balance of probabilities, i.e. that it was more likely than not to have occurred. Thus it is more difficult to prove a criminal case, as the burden is higher.