LLJ3245 Session 02: Legal Systems of Sri Lanka

Session 2
Legal Systems of Sri Lanka
Contents
Introduction
2.1Personal Laws and Territorial Laws
2.2 Roman – Dutch Law
2.3 English Law
2.4 Kandyan Law
2.5 Tesawalamei Law
2.6 Muslim Law
Review Questions
Summary
Learning Outcomes

Introduction
Historical evidence suggests that from the third century BC, to year 1815
AD, the governing system of Sri Lanka was the absolute monarchy. 1

During this period, there have been several invasions from South India. By
the 6th century AD there were Muslim and other Communities settled in the
island. However, the whole island was under the rule of the Sinhalese kings
until 1467.
The Portuguese, who arrived in Sri Lanka in 1505, acquired control over the
maritime provinces of the island in the following years. Their rule lasted
until 1656, and during this period, Sinhalese and other customary laws
within the areas under their control underwent considerable modifications.
Kandyan provinces remained under the rule of the Sinhalese King.

1
D‟Oyly, John, A Sketch of the Constitution of the Kandyan Kingdom, (ed.) L.B.J. Turner, Le Mesurier,
Panabokke. Ceylon Government Printer Press, 1929, p.84

Copyright © 2019, The Open University of Sri Lanka

LLJ3245 Session 02: Legal Systems of Sri Lanka

The Dutch arrived in the island in 1656 AD, and gained control over the
maritime province from the Portuguese. The Dutch introduced the Roman
Dutch Law to the maritime provinces under their control. 2

Subsequently, the English took over the maritime provinces, which were the
Dutch colonies, in 1796 The whole island became a British Colony in 1815,
with the execution of the Kandyan Pact of 1815. The British while
recognizing the customary laws and Roman Dutch law as the law of the land,
introduced English law to the legal system of country.

As a result, Sri Lanka has become a country rich with various legal systems
and traditions, including the greatest two legal systems of the western world,
i.e. British common law and Roman civil law, operating side by side with
the religious laws and indigenous customary laws, such as Kandyan law,
Tessawalami and Muslim law.
The following legal systems exist in Sri Lanka.
Roman – Dutch Law
English Law
Kandyan Law
Tesawalamai Law
Muslim Law

2.1 Personal Laws and Territorial Laws

In order to understand the scope and application of the laws which apply
only to certain sections of the population of a country, as opposed to the
laws which are of general application, the concepts of “territorial laws” and
“personal laws” should be considered.

A section of
the population
or a ethnic
Personal law is the law which applies to
group

A personal law will be applicable to a certain group of people who can be

distinguished from the others, on factors, such as their faith, ethnicity,
culture, birth etc.

2
Karonchihamy v. Angohamy (1904) 8 NLR 1

Copyright © 2019, The Open University of Sri Lanka

LLJ3245 Session 02: Legal Systems of Sri Lanka

Muslim law is a classic example for a personal law, which is applicable to

those who profess Islam.

Territorial law Territorial law is the law a particular

which applies to all persons resident in territory

On the other hand, a territorial law will be applicable to the residents of a

particular geographical area, irrespective of their religious, cultural or ethnic
differences. A bylaw passed by a municipal council, which is operative
within the territory of that municipality, could be considered as a territorial
law. Kandyan law was considered a territorial law during the rule of the
Kandyan Kings, however, as we will discuss later, it has metamorphosed
into a personal law now.

2.2. Roman – Dutch Law

During the Dutch rule from 1656 to 1796, the Dutch introduced the Roman
– Dutch Law to the legal systems of the country3. The Roman Dutch law
consists of Roman law Dutch Law as well as Germanic local customs.

At the beginning, the application of the Roman – Dutch Law was limited to
the Dutch settlers and their native servants. Subsequently it was extended to
the Sinhalese living within the areas controlled by the Dutch. Unlike the
Portuguese, the Dutch looked into the proper administration of their laws
within the areas of their control and set up a system of courts, for that
purpose.

Despite several unsuccessful attempts, the Dutch could not gain control over
the Kandyan Kingdom, and as a result the Kandyan law, operated within the
Kandyan provinces, remained intact during this period. The Dutch had
recognized the laws and customs of the Muslims and Tamils in the maritime
provinces.
Dutch introduced to Ceylon following court system in their period.

3
Sources of Roman Dutch Law in Sri Lanka are the treaties of jurists, case laws and
statutes.

Copyright © 2019, The Open University of Sri Lanka

LLJ3245 Session 02: Legal Systems of Sri Lanka

Raden van Justitie

(The High Courts of Justice)

Landraden
(the Land or country courts)

Civiele Raden or Stads Raden

(The Civil or Town Courts)

The Raden van Justitie established in Jaffna, Galle and Colombo. An appeal
could be laid from the decision of a lower court of justice to the High Court
of justice in each region. Similarly a party who was dissatisfied over a
decision in a High Court of Justice in GallE or Jaffna could file an appeal to
the High Court of Justice in Colombo. From the High Court of Justice in
Colombo an appeal could be made to the High Court in Batavia.
The British managed to gain control over the entire island, in 1815.The
British identified the Roman Dutch law as the law of the country and
extended it to the entire island. Because of this, the Roman Dutch law has
become the residuary law of the land. Thus, whenever there is a lacuna in
an area of law, to which the English law or statutory law does not apply, the
Roman Dutch law is looked up to for as the applicable law.
The application of the Roman – Dutch Law is not restricted to a territory
today and is considered as part of the General Law of Sri Lanka. The
General Law applies to all persons in Sri Lanka when their own personal
laws do not apply.

The Roman Dutch law is applicable to the areas;

to which the English Law is not applicable under the Introduction of the
laws of England Ordinance, and which are unregulated by statutes.

The present-day application of Roman Dutch Law is thus limited to:

10

Copyright © 2019, The Open University of Sri Lanka

LLJ3245 Session 02: Legal Systems of Sri Lanka

Family Law-many concepts relating to marriage, consequences of marriage,

parent and child, guardians are governed by Roman Dutch Law.
 The Law of Delict
 The Law of Contract
 Contractual Capacity
 Law of Property
 State Liabilities
 Ownership
 Possession

2.3 English Law

After the Kandyan agreement was signed by the British and Sinhalese in
1815, the country became a British colony and the English law became
applicable to the whole country.
The introduction of English law into Sri Lanka has taken place in mainly
two ways.
Through legislation
Through case law
Introduction of the Laws of England Ordinance provides that the laws of
England will be the laws of Ceylon in the areas specified in that ordinance.

In addition, several legislative enactments introduced by the British were

based on the English legal principles, and as a result the English legal
principles found their way into the Sri Lankan legal system, through the
legislative process. Some examples are as follows;

 The Penal Code No: 2 of 1883 codifies principles of English

Criminal Law.
 The Prescription Ordinance No: 22 of 1871 is influenced by
English Law
 The Prevention of Frauds Ordinance No: 7 of 1840 is influenced
by English Law.
 Wills Ordinance No: 2 of 1844 is influenced by English Law.

On the other hand, the British set up their own courts system in Ceylon, with
Privy Council in the Great Britain as the apex court of the country. The
British Judges, specially during the early period of their rule, when deciding

11

Copyright © 2019, The Open University of Sri Lanka

LLJ3245 Session 02: Legal Systems of Sri Lanka

the cases before them, were keen in introducing the English legal principles
to Ceylon as much as possible.
The common law principle of stare decisis, required that the decisions of
superior courts, including the Privy Council were applicable to the lower
courts.
Areas of law which had been shaped by the English law are follows;
 Constitutional law

 Commercial Law
Banking Law
Law relating to Sale of Goods
Insurance Law
Law of Agency
Copyright, Patent, Trade mark Laws
Corporate Law
Law relating to partnership
Insolvency Law
Law relating to carriage of goods by sea
Some areas of the Law of Contract

 Procedural Law
Civil Procedure
Criminal Procedure
Law of Evidence

 Testamentary Action
 Criminal Law
 Administrative Law
 Income Tax Law

2.4 Kandyan law

According to Hayley, an expert in Kandyan Law, “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

12

Copyright © 2019, The Open University of Sri Lanka

LLJ3245 Session 02: Legal Systems of Sri Lanka

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”.4
During the rule of the Kandyan Kings everyone lived in that area was
subject to Kandyan law, which is why it was a territorial law at that time.
After the British acquisition of the Kandyan provinces, their law became the
general law of the country, and the Kandyan law was made applicable to
those who were “Kandyans” only.

Kandyan Law was a Kandyan Law

Kandyan
territorial law became a personal law
Law
before 1815 law after 1815

Some important cases on the scope and application of Kandyan law are as
follows;

Kershaw v. Nicoll5
It was held that the wife of a Scotsman domiciled in the Kandyan provinces
acquired the domicile of her husband in the Kandyan Provinces and on that
basis she acquired the status of a wife governed by the Kandyan law. This
case is an authority to prove that the Kandyan Law was applied to all
inhabitants of the province as a territorial law irrespective of the nationality
of the inhabitants.

William v. Robertson (1886)6

It was held that the Kandyan Law was not applicable as a territorial law to
all residents in the Kandyan provinces but applied only to people who can
be called Kandyans those who lived in those provinces as at 1815.
Kandyan Marriages and Divorce Act No: 44 of 1952 is a legislative attempt
to codify and modify the Kandyan law on marriage and divorce. Some
salient features include;
A Kandyan marriage can be contracted only between two persons governed
by Kandyan Law

4.Hayley, F.A.: A Treatise on the Laws and Customs of the Sinhalese, New Delhi:Navrang,
1923, p.25
5 Kershaw v, Nicoll (1860-62) Rama. 157
6 8 S.C.C. 36

13

Copyright © 2019, The Open University of Sri Lanka

LLJ3245 Session 02: Legal Systems of Sri Lanka

The registration of a Kandyan marriage can take place only in Kandyan

provinces.
Only registered marriages are recognized as lawful marriages under the
Kandyan Law
Kandyan marriages are solemnized by Registrars of Kandyan Marriages
appointed to perform this function in each division of the Kandyan
provinces

Podinona v. Herathhamy (1985)7

It was held that a customary marriage solemnized in a Catholic church
between two Kandyans was not valid as it had not been registered.

2.5 Tesawalamei Law

Although the Portuguese applied Thesawalamai during their rule in Jaffna
Peninsula, no attempt was made to codify it. The Dutch who often found it
difficult to ascertain principles of this legal system for the proper
administration of justice emphasized the necessity of codifying the
Tesawalamai. Acting on the recommendation Zwardacoon, the Commander
of Jaffna. Governor Simons in 1706 entrusted to Class Isaacsz the task of
collecting and codifying „the Jaffnapatam ancient customs and rules
according to which persons of this province are in the habit of recovering in
civil matters‟.8 The original codification made in Dutch language was
subsequently translated into Tamil by Jan Pirus. The copies of the Tamil
translation were later distributed among the Mudaliyars in order to ascertain
whether they correctly reflect the customs that were adopted by the Tamils
at that time. Finally the Code was approved by the Dutch governor and was
applied in resolving civil disputes from 1707 to 1806.
The British, who found this when they acquired the Jaffna peninsula, gave
special recognition to this in regulation No: 18 of 1806. It enacted that “the
Tesawalamai or customs of the Malabar inhabitants of the province of
Jaffna, as collected by the Orders of the governor Simons, should be
considered to be in full force”.
The sole criterion that would be adopted in deciding whether a person is
governed by Tesawalamai Law or not is whether the particular Tamil person
had acquired an inhabitancy in the Northern Province. The courts have
consistently held that the Tesawalamai Law applied not only to Tamil
inhabitants of Jaffna in 1806 and to their descendants but also to any Tamil
who comes and settles down and acquire inhabitancy in Jaffna. Therefor

7 (1985) 2 Sri L.R. 237

8 Tharmalingam Chetty v. Anurasalam Chettiar (1944) 45 N.L.R. 414 at 416 per Soertsz J.

14

Copyright © 2019, The Open University of Sri Lanka

LLJ3245 Session 02: Legal Systems of Sri Lanka

Tesawamalai
Tamils Inhabitants in
Law Jaffna

King v. Perumal(1911) 9
held- that a native of South India living in the Central Province was not
governed by Tesawalamai because he was not an inhabitant of the Northern
Province.

Spencer v. Rajaratnam (1913).10

The court held that the fact of birth or descent as a Tamil inhabitant of
Jaffna was insufficient to prove that a person is governed by Tesawalamai.

Sivagnanalingam v. Suntheralingam (1988).11

On the facts of the case the Supreme Court held where a person had not
severed his connection with Jaffna, that no intention of abandoning the
original Jaffna could be established.

2.6 Muslim Law

The application of Muslim Law entirely depends on whether a person is an
adherent of Islam. Any person who embraces Islam at a later stage may be
governed by Muslim Law from the date of his or her conversion to Islam.
Muslim law which was codified by the Dutch became known as the
Mohammedan Code in 1806.

It contains two main titles called First title and the Second Title.
 Sections 1 to 63 of the First Title dealt with Succession,
inheritance and other incidents occasioned by death .

9
14 N.L.R. 496
10
16 N.L.R. 321
11
(1988) 1 Sri L.R. 86

15

Copyright © 2019, The Open University of Sri Lanka

LLJ3245 Session 02: Legal Systems of Sri Lanka

 Sections 64 to 102 of the Second Title was on matrimonial

affairs and covered this aspect.

The Mohammedan Code was not an exhaustive collection of Muslim laws

but a basic attempt to compile the laws and usages of Muslims.
The Muslim community of Sri Lanka was dissatisfied with the Code on the
ground that aspects of it were obsolete and not in harmony with the religious
law and practice of Islam. The Mohammedan Code was completely repealed
by the year 1931.

Today there are three main statutes applicable to the Muslims;

 The Muslim Marriage and Divorce Act No: 13 of 1951
 The Muslim Mosques and Charitable Trusts or Wakfs Act No:
of 1956
 Muslim Intestate Succession Ordinance No: 10 of 1931

Attorney General v. Reid (1964)12

The court held that a person married under the General Law could by
unilateral conversion to Islam contract a second marriage under the Muslim
Law without getting dissolution of the first marriage.

Natalie Abeysundere v. Christopher Abeysundere (1997)13

The Supreme Court overruled Reid‟s case and held that the Marriage
Registration Ordinance which prohibits polygamy contemplates only
monogamous marriages. On the basis of this legal reasoning the court held
that notwithstanding respondent‟s conversion to Islam, his second purported
marriage was void as it was contracted while the first marriage was
subsisting.

The following areas are governed by Muslim Law

 Marriage / Divorce
 Inheritance
 Adoption of children
 Maintenance

12
67 N.L.R. 255
13
(1998) 1 Sri L.R. 185

16

Copyright © 2019, The Open University of Sri Lanka

LLJ3245 Session 02: Legal Systems of Sri Lanka

Review Questions

1. Explain with examples the difference between a personal law and a territorial law.
2. What are the legal systems in Sri Lanka?
3. How did Kandyan law become a personal law?
4. What are the basic requirements for a person to be subject to Tesawalamei law?
5. What are the basic requirements for a person to be subject to Muslim law?
6. Name the courts introduced by the Dutch to Ceylon in their period?
7. What are the areas of law to which English law is applicable today?

Summary
This session provides the background to the legal systems in Sri Lanka,
including basic introduction to indigenous legal systems, such as Kandyan
law, Tesawalamei, personal laws such as Muslim law and the legal systems
introduced to Sri Lanka by the European conquerors, such as Roman Dutch
law and English law. This lesson mainly aims to give you a basic idea about
the scope of those legal systems and how those operated hand in hand in Sri
Lanka‟s multi ethnic society.

Learning Outcomes

After you have completed the study of this session you should be
able to:
 Explain the legal System of Sri Lanka
 Identify the laws applicable to Sri Lanka
 Describe the meaning of territorial law and personal law

17

Copyright © 2019, The Open University of Sri Lanka