“The legal system of Sri Lanka has often been likened to a many coloured mosaic. It represents rather the co-existence of diverse elements than their fusion into one. Laws springing from sources as diverse as England, Arabia and the Gangetic plain stand side by side jostling for recognition with those taking their origin in Rome, in the Netherlands and in indigenous custom.” - C. G. Weeramantry
The many coloured mosaic of Sri Lankan law bears the mark of both our tumultuous colonial history as well as our cultural diversity. The former is represented in the special laws of Thesawalamai, Muslim Law and Kandyan Law. The latter manifests most explicitly in terms of the prevalence in our legal system, even today, of Roman-Dutch and English common law, as well as more indirectly, through the complex ways that the forces of colonialism influenced the special laws already existing in Sri Lanka.
In more recent history, Sri Lankan law has been influenced by the forces of globalisation, the increasing need to co-ordinate as a result of growing interconnectedness and the accompanying harmonisation of laws that comes with this phenomenon. For instance, through the consolidation of international law in the post -UN era as well as the establishment of individual bi lateral and multi-lateral treaties with other countries.
Seventy one years after independence, an understanding of the origins of our laws as well as the complexities of the various influences of our legal past will benefit us as we progress along our post-independence path, balancing the twin virtues of sovereignty and internationalism.
Colonial History of Sri Lanka’s Laws
Roman Dutch Law
Upon the consolidation of power in Sri Lanka by the Dutch in 1656, Roman-Dutch law was introduced in areas where they maintained control of the country, namely the coastal areas. In addition to implementing their own laws, the Dutch also codified Thesawalamai and Muslim law which applied to the Jaffna Tamil and Muslim communities respectively. The laws of the low country Sinhalese, however, were not codified, the reasons for which have been a subject of debate for legal scholars, with possible reasons ranging from the negligence of Dutch colonial administrators to the difficulties of codification accompanying regional differences in laws amongst the Sinhalese. As such, Roman Dutch law was used to govern the Sinhalese in those areas where the Dutch exercised power.
Roman Dutch law continued to remain in place even after the period of Dutch colonial rule had ended. This was due to the fact that during the early stages of their colonial rule in Sri Lanka, the British enacted the Proclamation of 1799 ensuring that the laws which already govern the country continued to remain in place. As such, Roman Dutch law was recognised as the common law of the country whilst the many customary laws were also recognized by the British in the legal areas to which they pertained. This included Kandyan Law, previously governing those living under the Kandyan monarchy, which would now for the first time be administered on the part of a colonising power.
However, with the dawn of the industrial revolution many new issues arose, particularly with regard to commerce, in which the incumbent Roman-Dutch laws did not provide the adequate legal infrastructure to deal with newer more complex disputes.
Being out of touch with how Roman-Dutch law had developed after 1799, British jurists were unable to apply Roman-Dutch law to several situations in the newly industrialised world. As such, the British implemented their own laws in order to deal with legal issues in areas such as insurance, the sale of goods and banking. In areas such as land and basic contracts however, Roman Dutch law continued to apply. Indeed, Roman Dutch law continues to apply to these issues to this day. Former Attorney General Yuvanjana Wijayatilake notes that “As lawyers we always consider laws of property as being governed by Roman Dutch law except where personal laws apply”.
“In cases of property, defamation and delicts, Roman-Dutch law has still not been replaced by English law” Wijayatilake adds.
Similarly, many of the commercial laws put in place by the British during this period still apply today with the Civil Law Ordinance of 1853, creating the foundations upon which our commercial legal structures are built to this day.
The Special Laws
In addition to Roman Dutch law and English law upon which the foundations of the general law of Sri Lanka were built, the special laws of Sri Lanka, the legal successors of Sri Lanka’s indigenous customary laws, still represent a significant part of our legal framework.
Though these laws are indeed manifestations of our pre-colonial indigenous culture, the special laws themselves have had a complex relationship with regard to colonialism. It must be noted that the special laws do not necessarily provide us with a clear picture of the legal infrastructure of our precolonial past. This is because the way the special laws are practiced today is as much a product of the process of codification itself, as it is a reflection of the legal customs of Sri Lankans prior to colonialism.
Thesawalamai
Thesawalamai, roughly translating to ‘customs prevailing in the country’ refers to the set of laws governing Tamil people living in the Jaffna district.
Thesawalamai was initially an indigenous customary law, a largely unwritten code of conduct, prior to its subsequent codification by the Dutch in 1707 after which it took the position of a positive written law. It was then recognised by the British in the Thesawalamai code of 1806. However, the imperfections of the process of codification itself mean that the Thesawalamai code we see today is not necessarily how it was practiced by Jaffna Tamils prior to colonialism.
Dr H. W. Tambiah notes in his seminal work ‘The Laws and Customs of Tamils in Jaffna’ that the “The Dutch and Portuguese changed the customary law in certain respects and therefore it is not surprising that when codified by the Dutch, Thesawalamai could be described in the words of Tennyson as a ‘wilderness of single instances’”.
Dr Shivaji Felix notes in the introduction to this aforementioned text that the Thesawalamai code of 1806, as instituted by the British, does not paint an accurate picture of the practice of Thesawalamai as a customary law prior to its codification, with it expressing a significant Christian influence that is inconsistent with the cultural realities of Jaffna Tamils at the time. For instance, though most Tamils in the Northern Province were Hindu, the code refers to marriages between Christian and ‘pagans’ as well as the ‘intermarriage of pagans’. As such, “by referring to non-Christians as pagans, (the code) was in fact adopting terminology concordant with the value system of the ruling elite at the time,” Dr Felix notes.
Kandyan Law
Kandyan law in Sri Lanka dates back to the Sinhalese monarchy in Kandy, representing territorial laws governing all people living in the Kingdom regardless of their ethnic or cultural group. Kandyan law is no longer territorial and can only be applied to Sinhalese people who can trace back their lineage to ancestors living within the Kandyan kingdom during the rule of the Sinhalese monarchy, covering areas such as marriage, inheritance and adoption.
Just as with Thesawalamai however, there was a significant colonial influence on Kandyan Law. One example of this is that, polyandry, the practice of women having multiple husbands, which was recognised in Kandyan law, was deemed unacceptable by the British and banned in 1859.
Muslim Law
Muslim personal law in Sri Lanka is structurally different from the other special laws on the island in that it applies to all Muslims regardless of their locality and race. Muslim personal law relates specifically to issues such as marriage, divorce and maintenance.
Muslim law in Sri Lanka was not initially a codification of the practices of Muslims in Sri Lanka at the time, but a set of Islamic laws from another colony. The Dutch had initially codified a set of laws called the ‘Byzanderwatten’ to govern Muslims in the Dutch East Indies (most of which is now Indonesia), which was then applied to Muslims in Sri Lanka. This was then translated by the British and instated as the Mohammedan Code of 1806.
Upon the codification of each of these sets of indigenous laws by the colonial forces, the flexibility and response to social change embodied in the customary nature of these laws was lost, in addition to the addition of colonial influences apparent in the process of codification. As such, though special laws represent a significant part of our indigenous social landscape, they do not necessarily offer us anuntouched gateway to our pre-colonial past. This is significant in the context of the debate surrounding the reform of such laws, which is often framed as a battle between the traditional laws of Sri Lanka’s communities and neo-colonial forces seeking to dismantle them, when in fact the form in which these laws exist today is already heavily influenced by colonialism.
Developments in Sri Lankan Law Post Independence
Having understood the indigenous and colonial foundations upon which our legal systems have been built, we must also look to our more recent, post-independence past to understand both the current state of Sri Lanka’s legal system as well as its trajectory.
One of the biggest trends in law making post-independence has been the influence of international law as manifested in the signing of treaties and conventions of the United Nations. Intellectual property law in Sri Lanka, for instance, is almost entirely based on such treaties and conventions
Nevertheless, Sri Lanka’s relationship with international law is different to that of most other countries in that it adopts a ‘dualistic’approach to international law rather than a ‘monistic’ one.
Monism and dualism are two different legal theories about the relationship between national law and international law. Under a monist system, international laws immediately become a part of national laws once an international treaty is ratified, whereas under a dualist system they have to undergo the process of being translated to the national law in order to apply.
The dualist nature of Sri Lanka’s legal system was made clear in the landmark Singarasa vs Attorney General ruling of 2006. In this case, the Human Rights Committee in Geneva accepted the appeal of Nallaratnam Singarasa, who had been convicted for conspiring to attack army camps and to overthrow the government. The Human Rights Committee asked that he be offered a retrial on the grounds that the confession on which his conviction was based, was involuntary and illegitimate. However, even though the Sri Lankan government was a party to the international treaty that Singarasa’s appeal was based on (the optional protocol to the ICCPR) his appeal was rejected. This was because despite the signing of this international treaty, its dictates had not been enacted into law in Sri Lanka and thus the ruling of the Human Rights Committee had no effect.
It has been argued that this dualism is a manifestation of the legislative authority of Parliament. However, given the fact that the relevant treaties are those that the government of Sri Lanka have agreed to sign, many jurists regard the dualist nature of Sri Lankan law as an impediment.The argument is made that in the current context of a globalised world in which distance is proving to be less and less of a salient factor, multilateral cooperation and the harmonisation of our laws are required to successfully tackle issues that affect people on an international scale.
Even if one looks outside the domain of international laws put into place upon the signing of treaties, a significant number of changes to our laws have been influenced by laws from other countries. For instance, the Companies Act of 2007 had a great deal of influence from New Zealand’s companies act. Sri Lanka’s 1995 Arbitration Act is also an example of this, with it being heavily influenced by Sweden’s arbitration act.
Of course, lawmakers are never working on a blank state and will always take inspiration from law that has come before, and there seems nothing wrong with borrowing legal structures that work well, as long as the specificities of the Sri Lankan context are accounted for when doing so.
Indeed, as we move forward along our post-independence journey, we must be aware of the complex ways in which various means have shaped our laws. We must understand the ways in which this has resulted in both beneficial and negative impacts on our legal culture, but not allow this to stop us from reaping the benefits of international cooperation as we move forward along our hard-won path of self-government.
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