A Legal Systems Introduction of Sri Lanka PDF

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A Legal Systems Introduction of Sri Lanka a brief introduction for the first question...

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Sri Lanka is a mixed jurisdiction in which different legal systems apply. We will consider each of these legal systems separately.

1. Kandyan law 2. Tesawalamai Law 3. Muslim Law 4. English Law 5. Roman Dutch Law 6. Statutory Law

Kandyan law is applicable to the descendents of the original inhabitants of the region called as Kandyan region. What are the Kandyan regions have not been specifically defined. But the Kandyan Marriage and Divorce Act No: 44 of 1952 in its schedule contains a definition of the Kandyan regions. According to this definition provinces such as the Central Province, North Central Province, Uva Province, the Sabaragamuwa Province and certain other districts in the Northen, Eastern and North Wester Province fall under the category of Kandyan Province. One important thing to note is that Kandyan Law applies only to the descendents of original Sinhalese who were resident in the Kandyan Province as at 1815. Earlier this law applied as a territorial law meaning that it applied to all persons who enter the province. Later it was transformed into a personal law applicable only to the inhabitants and their descendents of the Kandyan Province. The original Kandyan Law does not apply today. It has been changed by judicial decisions and statutes from time to time. Aspects such as the slavery system, several brothers of the family marrying a single woman are not part of the Kandyan Law today. Today the Kandyan Law applies in the areas of marriage, intestate succession, persons and inheritance. Kandyan Law is not a comprehensive law. As a result when there were gaps in the Kandyan Law the Roman

Dutch Law was used by the courts to fill these gaps. Similarly English law was also instrumental in changing the Kandyan Law.

This law applies only to the Tamils who have a permanent residence in the Northern Province. It also applies to all lands in the Northen Province. This law is also not a complete one. As a result the courts in deciding cases used the Roman Dutch Law to fill the gaps in the Tesawalamai Law. The applies today to persons, marriage, inheritance, intestate succession etc.

This law is not confined to any area as in the case of Kandyan Law and Tesawalamai Law but applies to any person who is a follower of Islam. The basis of the application of the law is the Islamic religion. Accordingly the law will apply to any Sinhalese or Tamil if he or she embraces Islam.

The term Roman Dutch Law was an invention of the Dutch jurist Simon van Leeuwen. This system of law derives its force from the Roman Law and the Germanic custom and have come into existence when these two systems were merged in the administration of justice in the Dutch Provinces. When the Dutch captured eastern countries and formed their settlements they applied this law in these new settlements. So when the Dutch came to Sri Lanka they applied their laws in the colony. There are no clear evidence as to the extent to which the Dutch applied Roman Dutch Law in our country. It is really the English who applied Roman Dutch Law during their period of rule.

Roman Dutch Law was a comprehensive legal system. When there were gaps in the personal laws such as the Kandyan Law, Tesawalamai Law and the Muslim Law and the judges were unable to decide a case according to these personal law due to lack of clear principles applicable to a transaction, they used the Roman Dutch Law to fill

these gaps. Due to this phenomenon, the Roman Dutch Law is called the Common law of our country. At a later stage certain areas of the Roman Dutch Law was replaced by statutes and the English Law principles. For example earlier Roman Dutch Criminal Law applied in Sri Lanka. But later it was replaced by the English Criminal Law. Today Roman Dutch Law applies in the areas of property, marriage divorce obligations succession contracts and delicts or civil wrongs.

English Law was introduced during the period of British rule and later period. This law crept into Sri Lankan legal systems through two methods. One was the judges in deciding cases introduced English Law principles. The other method was the introduction of English Law through legislation by Parliament. As a result English Law applies today in areas in which the principles of Roman Dutch Law were applied earlier. The Introduction of English Law Ordinance of 1852 made way for the application of English Law principles in Ceylon. Today English Law principles apply in the areas of bills of exchange, promissory notes and cheques, partnerships, banking, agency, transport of goods by lands, life and fire insurance and Criminal law law of evidence, prevention of frauds, age of majority, last wills and Constitutional Law.

Statutory law is contained in the legislation passed by Parliament from time to time. Today statutory law is the main source of law in Sri Lanka.

The General Law of Sri Lanka consists of the English Law, Roman Dutch Law and the statutory law. These three systems of law are part of the General Law in Sri Lanka. The common law of Sri Lanka is the Roman Dutch Law. Therefore it is important for the students to note difference between the common law and the General Law.

The legal history of Sri Lanka can be mainly divided into 4 periods. They are: 1.Pre- colonial period (Before 1501) 2. Portuguese Period (1505 – 1656) 3. Dutch Period (1656 – 1796) 4. British Period (1796 – 1948)

A common feature that we can see in respect of judicial system that existed during Sinhalese kings in Sri Lanka was that it did not have clearly defined concepts such as law and custom. Law as it is understood today is a rule made by an authority such as king or Parliament for the proper regulation of a community or society. Custom means generally accepted behavior among members of a social group. Therefore violation of a law may attract punishments but contravention of a custom may be disapproved by the society but will not involve punishment. During the period of kings there was no difference between laws and customs. Although today we have a hierarchy of courts system which allows an aggrieved party to make an appeal from the decision of a lower court such as District court to a higher court like the Court of Appeal, there was no such a court system during the period of kings. Similarly today we have Administrative officers to perform administrative functions and judicial officers or judges to perform judicial functions. But there was no such a system during that period and the administrative officers in the ancient period performed judicial functions too. Although we can collect much information about religious, cultural and social history of Sri Lanka from books like Mahawamsa, little information is available on laws that applied during the periods of kings in Sri Lanka. One of the main reasons for non availability of written records on laws is the lack of a system of maintaining records in written form as we had only a oral tradition of passing information from one generation to another orally. Most of the information that is available is contained in

the writings and records prepared during the colonial periods of Portuguese, Dutch and British rule. These writings draw our attention to one important factor. There were no written records of the laws that applied during the reign of kings before the arrival of colonial powers.1 Cooray states about historical evidence relating to the compilation of a distinct code of law during the reign of Dappulla III2 Tambiah3 mentions about an official called Lekamge (literally the House of Secretaries) who was attached to the Council of State or Sabha. The duty of Lekamge was to draft edicts which were issued in the name of King. According to historical records the Portuguese agreed at the Malvana Convention of 1597 to maintain and administer the laws and usages of the Sinhalese in the Maritime Provinces which were under the control of the Portuguese. This fact shows that there were Sinhala laws that were in operation during the period before colonial rule. A similar assurance was given in the Kandyan Convention of 1815 when the British administration agreed immediately after the capture of the Kandyan Kingdom to continue the laws of the Kandyan Sinhalese. This incident also indicates that there were some laws in the Kandyan Provinces.

The historical records during the period of Portuguese and the Dutch indicate that unwritten laws did exist in the form of customs and that they were carried from one generation to another through a oral tradition, The Dutch Commander of Jaffna, Zwardekrown has stated in his minutes regarding native customs that existed among the people in Jaffna which dealt with the manner in which disputes were settled. He indicated that these customs should be recorded. As a result these customs were recorded in 1707 and the compilation was called as the Tesawalamai Code. It was during the Dutch period that the laws and customs of the Muslims were recorded and compiled as the ‘Mohommadan Code’. The laws of the Mukkuvars of Puttlam were recorded in a compilation prepared by the Dutch.

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Robert Knox: A Historical Relation of Ceylon (1681). (Reprint1981 M.D. Gunasena) p.137 Cooray L.J.M.: The Legal System of Ceylon, p.100 Tambiah, H.W.: The judicature of Sri Lanka in its historical setting, Colombo:Gunasena,1977 p.1

As Coory indicates4 one of the main reasons for non availability of written records on the Sinhala laws of ancient Sri Lanka is that there was no systematized law to guide the administration of justice and the laws were not contained in books. The laws of the country existed in the form of customs and traditions. They were applied to the affairs of the kings and the subjects. As Robert Knox has stated “there are no laws but the will of the king and whatsoever proceeds out of his mouth is immutable law. Nevertheless they have certain usages and customs that do prevail and are observed as Laws; and pleading them in their courts and before their governors will go a great way”. These laws that existed in the form of customs were handed down from one generation to another through oral tradition. Therefore it was not surprising that the customs carried through oral tradition were destroyed during the period of colonial rule in the Maritime Provinces that lasted for more than 300 years.

Kandyan Law is a clear example for the existence of Sinhala laws during the period of kings in the form of customs. As the Kandyan Kingdom retained its independence till 1815, the Kandyan region was free from the influence of the Portuguese and Dutch rulers. As a result the laws and customs of the Kandyan Provinces remained intact as unwritten laws and customs. These laws and customs were later put into written documents by some authors in the British colonial period. The law that was applied in the Kandyan provinces is called Kandayn Law today. Hayley who is one of the specialists in Kandyan Law, says that that “the Sinhalese law, as enforced in the Kandyan territories in the eighteenth and nineteenth centuries, was in no sense a personal law. Originating in the customs of the Sinhalese, it had long since become the law of a country administered by the authority of the King…. In respect to all races alike foreigners no less than subjects”.5 This statement and the records available on the Kandyan law prove that this law originally existed as a territorial law applicable to all inhabitants of the Kandyan provinces. It was only after this region was captured by the English, the Kandyan Law became a personal law which applied only to the people who were termed as Kandyans. 4 5

Cooray, L.J.M.: The Legal system of Ceylon, p.99 Hayley, F.A.: A Treatise on the Laws and Customs of the Sinhalese, New Delhi:Navrang, 1923, p.25

There is certain evidence to prove that there were some Sinhalese laws in the Maritime Provinces. When the Malvana Convention was signed between Portuguese and Sinhalese leaders in the Maritime Provinces, an assurance was given to Sinhalese officials that their laws will be continued without any change. Similarly Hayley quoting Bertolacci states that in 1769 the Governor Falck obtained from certain Kandyan priests a series of answers to questions put to them on the laws and the customs of the Sinhalese people.6 As Goonesekere states7 the Buddhist clergy were familiar with the indigenous Sinhala laws and the erosion of the institutional support for Buddhism in the Maritime Provinces during the colonial period may have also weakened the strength of the oral tradition through which laws and customs were passed from generation to generation.

The Portuguese did not introduce their own laws into Ceylon. The Tesawalamai Code which was compiled during the period of Dutch states that the testimony of the oldest Mudliyars referred to alterations gradually made to customs and usages in consequence of several changes of government, particularly those in the times of the Portuguese8 But the extent to which such changes were made was not clear. But it is clear that the existing indigenous laws and customs were eroded and deteriorated during the period of Portuguese rule.

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Hayley op.cit p.23 citing Bertolacci Goonesekere, S.W.E. Introduction to Laws of Sri Lanka, Block I :Nawala: The Open University,1984 ,p.70 Goonesekere op.cit., p.46...