Legal History - 2020 (English)

Pro|Studies 2020 Preliminary Year
First compiled and distributed in Sri Lanka in 2017 by the Pro|Studies

No 244, Hulftsdorp Street, Colombo 12
Modified/updated and distributed by the Law Students’ Union of Sri Lanka 2019
No. 244, Hulftsdorp Street, Colombo 12
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Pro|Studies 2020 Education Committee
Co-Heads
Yasith De Costa Brammadha Sivapathesundaram
Senior Committee
Ashani Dilakshi Ashwini Prabakaran

Asha Wanigasinghe Chamara Karunarathne
Charith De Silva Damith Chandika
Dulanji Namalika Dilhara Thathsarani
Ina Sajeer Kavindi Weerasekara
Kevin Nambuge Kishanth Krishnaperumal
Laksahani Himashi Madhu Ushani
Neranjana Gajasinghe Natasha Fonseka
Praneetha Bandaranayake Rathushini Shanmugadhas
Rusini Anuththara Sawani Yapa
Shashikala Prabani Shermila Muthalif
Thanuka Perera Thitumatuhan Amirthalingam
Thushara Saman
Junior Committee
Achala Tharaka Achini Malsha Perera

Aishwarya Sachinthani Benislos Thushan
Bishran Iqbal Chathurika Perera
Dulya Wellawa Eric De Silva
Gayan Sanjaya Hasala Gunathilake
Hasini Hondamulla Kalpa Jeewantha
MA Rauff Navodya Chathumini
Oshani Wijesekara Pramod Perera
Rajasekar Logithan Senel Rathnayake
Shakthinathan Shavinda Herath
Shabishanth Mohan Tharindu Liyanage
T. Dayanandaraja Theekshana Ranaweera
Thilini Sanjana Umesha Madiwaka
This document is for the sole purpose of assisting students in their academic activities and
only for free distribution.
Due credit should be given to the respective authors.
Content
01. Different Systems of Law in Sri Lanka
02. An Overview of the Laws of Sri Lanka
03. Introduction of English Law to Sri Lanka
04. The Reception of English Law through Judicial Activism
05. The Administration of Justice under the Dutch Government
06. Court System during the Dutch Period
07. Law Applicable During Dutch Period & Later in Modern Sri Lanka
08. The Ancient Sinhalese Legal system (Kandyan Law)
09. Tesawalamai
10. Muslim Law
11. Sources of Law - Introduction and Statutes
12. Doctrine of Judicial Precedent
13. Custom as a Source of Law
14. Religion as a source of law in Sri Lanka
15. Equity as a source of law in Sri Lanka
16. Courts of First Instance
17. High Court
18. The Supreme Court
19. Mediation Boards
20. The Sources of the classical Roman-Dutch Law
1. Different Systems of Law in Sri Lanka
Sri Lankan legal system is a combination of multiple sub-systems. When the Portuguese
arrived in 1505, there were two communities mainly;
a) Sinhalese who occupied the South & West hinterlands of Ceylon, who were largely
Buddhists. Sinhala Law was originated from the Sinhalese customs, Buddhist
canonical teachings, practices & rites.
Sinhala Law was divided in to Low Country Sinhalese Laws & Kandyan Laws with the
arrival of Portuguese. Neither the Portuguese nor the Dutch could occupy the Kandyan
Kingdom.
b) Tamils who occupied North & East of Ceylon, who were largely Hindus.
Tesawalamai was adopted which literally means law or customs of the land. This
was brought by Tamil immigrants who came from the coasts of Malabar and
Coromandel.
Besides these, there were
c) Muslims who came to Ceylon as traders adopted the Muslim Law to govern their
disputes and were scattered all over Ceylon in small groups.
d) Mukkuvars who was a fisher caste came from South-West coast of India, settled
in Jaffna, Puttalam, Kalpitiya & Baticaloa.
e) Chetties, Parsees & Paravars were also recognized by the Dutch & British rulers.
f) Christian Customery Law has been developed over a period of time; vide Gracia
Catherine v Wijegunawardena
Portuguese Influence on the Laws Sri Lanka (1505 – 1696 AD)
▪ The rulers did not introduce Portuguese Law to Ceylon. Therefore, the Portuguese
influence was very minimal.
▪ By Malwana Convention the colonizers agreed to apply the Sinhala Laws and
there were modifications since it was enforced by Portuguese rulers.
Dutch Influence on the Laws Sri Lanka (1696 – 1796 AD)
▪ Roman Dutch Law was Dutch residents & their servants, Natives who lived within
the forts and Christian Converts.
▪ Customary Laws such as Tesawalamai, Muslim Law, Chettie Law were applied in
respective communities but RDL was the residuary law which continued even in
British period. Dutch established an elaborate court system.
▪ Kandyan law never came under the Roman Dutch Law.
British Influence on the Laws Sri Lanka

▪ British took over the coasts of Ceylon (low country) in 1796 and Kandyan Kingdom
in 1815.
▪ One of the important characteristics of the British policy regarding administration
of their colonies was that they did not introduce English law by replacing prevailing
laws in a colony with their laws.
▪ According to the rules governing the colonies which are reflected in the decision of
Campbell v Hall,
✓ Pre-existing laws (RDL & special laws) remain unchanged unless changed by
the UK Parliament or by King’s prerogative power. (or by the local legislature
after independence)
✓ The Mukkuvar & Chettie laws became nearly obsolete, unless survived as a
local custom.
▪ Proclamation of 1799 and Proclamation of 1815 ensured the continuity of existing
laws.
▪ Similarly, other statutes promulgated by the British administration in Sri Lanka
such as the Charter of Justice 1801, 1833 and the Ordinance of 1835 reflected the
approach set out in Campbell v Hall.
When considering about all these developments that have been taken place in the legal
system of Sri Lanka it is agreeable that the Sri Lankan legal system is a mosaic of
multiple sub legal systems.
2. An Overview of the Laws of Sri Lanka

▪ The laws of Sri Lanka have been influenced by the civil and the common law systems.
▪ The Roman-Dutch law is the common law of Sri Lanka.
▪ A statute is the primary source of law. When there is no statute that is applicable,
the court will see if any personal laws are applicable, and if not, the Roman Dutch
law will be applied.
I. Criminal law, procedure and evidence
Criminal Administratio Code of

Procedure n of Justice Criminal
code, 1898 Law, 1973 Procedure
Act, 1979
Civil Administration Civil Procedure

Procedure of Justice law, Code
Code,1889 1975 (Amendment)
Law, 1977
II. Constitutional law

▪ Colebrook-Cameron (1833) and the Donoughmore (1931) constitutions were available
during the period of the British.
▪ The Ceylon Independent Constitution which was established in 1948 was based on
the Westminister model.
▪ The Constitution of the Socialist Democratic Republic of Sri Lanka of 1972 made Sri
Lanka a Republic.
▪ The Constitution of the Democratic Socialist Republic of Sri Lanka (1978)
III. Commercial and mercantile law

▪ The English law principles are applicable to bills of exchange, sale of goods,
partnership, companies, insolvency, banks and banking, maritime matters, carriage
of goods and insurance.
IV. Law of tort/ delict

▪ Liability in the Roman-Dutch law of delict is founded on the acquilian action and the
action injuriarum. There were also other remedies such as the pauperian action,
aediles edict, action de pastu, actio de effusis vel dejectis, actio de suspensis.
▪ There are torts which impose liability in English law in the absence of fault or
negligence.
▪ The only 2 statutes in this field are The Law Reform (contributory negligence and
joint wrong-doers) Act 1968 and Crown Liability in Delict Act 1969.
V. Law of contract
▪ English law – sale of goods, insurance, carriage of goods by sea, corporation,
partnerships, agency and bills of exchange, undue influence, rectification of
documents and contracts in restraint of trade, sale, hire, donation and suretyship.
▪ Roman Dutch law – contracts for the sale of land, capacity of minors, causa.
VI. Law of property

▪ The fundamental principles of the law of property are Roman – Dutch. The extent of
the application of Dutch law has been restricted by legislation, judicial decision and
the application of some of the exceptional systems of law, and to a limited extent by
local custom.
VII. Law of persons

▪ The law governing juristic persons is in general based on English principles, but birth
and legitimacy are governed by Roman-Dutch subject to the operation of statute.
▪ The Marriage (general) Ordinance of 1907 deals with many areas in relation to
marriage.
VIII. Law of succession

▪ Testate succession – Roman Dutch law as well as statutes such as the Prevention of
Frauds Ordinance of 1840 apply.
▪ Intestate succession – The Matrimonial Rights and Inheritance Ordinance will apply
to those who are not governed by any personal law.
IX. Law of remedies

▪ English law as well as the Roman-Dutch law apply.
▪ The ultimate product as a result of the combination of these laws is the law of Sri
Lanka.
3. Introduction of English Law to Sri Lanka

▪ English law relating to certain subjects were selectively applied because of the
existence of Roman Dutch law and Communal Personal Laws. English law was
incorporated by Statutes and Judicial Activism.
Reception of English Law by Statutes
I. Copies of Statutes Enacted in the UK
▪ A statute passed by Parliament of the United Kingdom was copied and enacted by
local legislature.
E.g. Sale of Goods Ordinance 1896, Bills of Exchange Ordinance 1927, Insolvency
Ordinance 1853
II. Codification of English Case Law Principles
▪ The principles underlying the decisions of the English Courts were codified and
adopted by local legislature.
E.g. The Penal Code 1883, The Code of Criminal Procedure Act 1978, The Evidence
Ordinance
▪ The above enactments are copied from statutes in India, reproduced with slight
modifications and were codifications based on underlying principles of English Law.
III. Incorporation of English Law by Reference
▪ The English Law on a particular subject was extended by the local legislature to the
island, without further elaboration of the substance of the law.
E.g. The introduction of the Laws of England Ordinance 1852, enacts that the law of
England is to be observed in maritime matters and in respect to all contracts and
questions relating to bills of exchange, promissory notes and cheques.
IV. Casus Omissus in a Local Statute
▪ Provision was made for the application of English Law where a statute is 01 or 02
above was silent. Here, the English law directly applies and English decisions are
binding.
E.g. Sale of Goods Ordinance 1896 provides for the application of English Law where
the ordinance is not complete.
▪ These enactments contained no statement of substance of the law and directly
incorporated by reference to the law in force in England.
V. The Extention of Acts of the United Kingdom Parliament before 1948
▪ Certain Acts of Parliament were extended to British Colonies in general, became a

part of the law of the colony during the British period.
E.g. Laws relating to Copyrights, Air Navigation and appeals to the Privy Council
VI. Assumption of British Sovereignty (Prerogative Power of British

Monarchy)
▪ English Law became applicable as a consequence of the assumption of British

sovereignty. Accordingly,
- Sri Lanka became one of the possessions of the British Crown.
- All persons born in the island became British Subjects owing allegiance
to the Crown.
- All public officers became servants of the Crown.
- All government property became the property of the Crown.
- All English rules on these matters became part of the law of
Sri Lanka superseding the Roman-Dutch Law.
▪ Prerogative powers derived from English Law became part of the law through
annexation, but since there was considerable doubt on the matter most of the
prerogative rights and powers were enshrined in legislation.
▪ However, The Republican Constitution of 1972 severed the connection which Sri
Lanka had with the crown in England.
4. The Reception of English Law through Judicial

Activism
▪ There were justifiable and arbitrary reasons used in the 19th and the early 20th
centuries to restrict the application of Roman-Dutch law. Since both the English law
and the Roman-Dutch law are foreign systems to Sri Lanka, the choice either in a
particular situation should be genuinely selective and pragmatic.
▪ In the case Of Samed V Segutamby, Jayawardena A. J. said, the proclamation of
1799 established the RDL as it subsisted under the ancient government of the United
Provinces as our common law and the presumption is that every one of those laws if
not repealed by the local legislature is still in force. However, the law reports of Sri
Lanka contain many instances where English principles other than those which had
been incorporated by statute, were referred to and formed the basis of judicial
decisions.
▪ The judiciary became conscious of their obligation to administer the prevailing laws.
Thus they attempted to justify their resort to English law in derogation of the laws
they were bound to administer. Some of such justifiable excuses are as follows.
I. Justifiable use of English law:
▪ The Roman - Dutch law does not provide for the situation which confronts the courts
(De Silva v Casim)
▪ The rules peculiar to the conditions of life in Holland are not a part of the law of Sri
Lanka (Ramasamy v Tamby)
▪ The roman-Dutch law is similar to English law (Wright v Wright)
▪ The Roman-Dutch law should be adapted to suit the circumstance of modern life by
reference to English authorities, and that the courts have adapted and acted only
upon so much of the Roman-Dutch law as is suited to circumstance in Sri Lanka
(Noordeen v Badoordeen)
There are also other methods of judicial incorporation which are more arbitrary.
II. Arbitrary use of English law
▪ It had to be proved that a Roman-Dutch rule relied upon by a litigant, had been
applied by the courts during the Dutch period. This was impossible because the
records were in the Dutch language.
▪ The English has been applied because the Roman-Dutch rule was obsolete. (Silva v
Balasuriya)
▪ The salutary character of the English rule (Silva v Balasuriya)
▪ When the partied agreed to be governed by English law (Pless Pol v de Soysa)
▪ That the common sense of English law knows little of the casuistically subtleties
which are to be found in the Roman-Dutch authorities (Francisco v Costa)
▪ That where the Dutch jurists disagree the Roman-Dutch law may be disregarded
(Ramasamy v Tamby)
5. The Administration of Justice under the Dutch

Government
▪ The Republic of United Netherlands delegated its powers to Dutch East India
Company, situated in Batavia, Java to exercise general control over the outstations
such as Ceylon.
▪ States-General was the supreme governing organ of The Republic of United
Netherlands and it entrusted authority to the directorate of the East India Company
Council of the Lords Seventeen to issue regulations.
▪ Ceylon came under the control of Governor-General, whose power was entrusted by
the Council of Seventeen.
I. Administrative System
▪ The main administrative divisions of Ceylon were centered on Colombo,

Jaffnapatnam and Galle. Each of these had a Raden Van Justitie (The High Court).
▪ The highest executive authority was the Governor, who was assisted by the Political
Council ( Politike Raad ) or Council of Polity ( Raad Van Polotie )
▪ The administrative areas were the coastal lowlands and the administrative areas of
Jaffnapatnam & Galle were governed by a Commandeur, who was assisted by a Local
Council.
II. Law Applicable
▪ The respective groups of Sinhalese inhabited from Kandyan Kingdom, Tamils

inhabited from Northern and Eastern districts and Muslims had their own personal
and property laws.
▪ Unless they were modified statutes (Placaats) passed by the Governor in Council of
Ceylon or Governor in Council of Batavia.
6. Court System during the Dutch Period

▪ There were 3 kinds of courts of record:
i. Raden van Justitie (The high courts of justice)
ii. Landraden (Land or country or district courts)
iii. Civiele Raden or Stads Raden (Civil or town courts)
▪ Other than these courts of record, there were European officials (Fiscaals, the Chief
Resident or the military officers in charge of subordinate stations and the Disavas)
and Asian chiefs and headmen who exercised judicial powers.
I. Raad van Justitie (High court of Justice)
▪ There were high courts of justice in Colombo, Jaffnapatnam and Galle.

▪ Each consisted of 7 or more person appointed by the Governor and Council from the
members of the council and the civil and military services.
▪ Originally the governor presided over the high court of Colombo, but in 1732,
governors and directors of the outstations of the East India Company were precluded
from presiding over the high courts. Therefore, the Secunde or Second in Command,
the Hoofd Administrates (chief administrator) became the president.
▪ In the high courts of Jaffnapatnam and Galle, the Commandeur, the chief executive
official of these 2 provincial capitals presided.
▪ In each of these chief town there was an official called the Fiscal who played an
important part in the proceedings of the high court. In civil cases, he acted as a
member of the court while in criminal cases, he was the public prosecutor.
▪ Some of the members were trained lawyers.
▪ The members were not paid any salary as a judge apart from the payments as
military and civil officials. They received a stipend, money for a cloak.
▪ Original jurisdiction
✓ The high court of Colombo exercised an original and appellate
jurisdiction in both civil and criminal cases.
✓ Original civil jurisdiction when the matter in dispute was above 120
rix-dollars in value.
✓ The other 2 high courts had the same powers in their areas.
✓ In criminal cases, the high court of Colombo had an original
jurisdiction over all persons; Europeans, Asians and Eurasians,
resident in Colombo. This was for matter that were beyond the
jurisdiction of the Fiscaal or the Disava, who had authority to try
petty cases within their areas,
✓ Several offences carried the death penalty, which was only after the
confirmation of the Governor.
▪ Appeal jurisdiction
✓ Each high court received appeals from the inferior courts, the
landraden and the civiele raden, situated in their district.
✓ For matters exceeding 300 rix-dollars in value, appeals lay from the
jaffnapatnam and Galle high courts to the High Court of Colombo.
✓ Subject to the same limitation in respect of the value of the action,
an appeal lay from the Colombo court to the high court of justice at
Batavia. However, jaffnapatnam and Galle cases could appeal to
Batavia only if the Colombo court gave a different judgement.
✓ There was no appeal after Batavia, however, a rehearing could be
obtained after petitioning the governor-general of Batavia.
▪ The governor and council had the power to suspend the execution of criminal
sentences pronounced by the high court.
II. Landraad (Land or Country or District court)
▪ This was below the high court of justice.

▪ This was established to relieve the Disava from a multitude of legal discussions.
▪ The inhabitants could appeal from the decision of the Disava to the landraad.
▪ Existed in Matara, Jaffnapatnam, Colombo, Galle, Chilaw, Puttalam, Mannar,
Maullaitivu, Trincomalee, Batticaloa.
▪ Jurisdiction
✓ Principle reason for the establishment was to deal with cases
relating to land.
✓ Primary courts of civil jurisdiction.
✓ Preliminary criminal trials allowed where there were no high
courts close at hand.
▪ Composition
✓ Composition varied in different districts.
✓ The Disava or the Chief Resident of the district presided, the other
members being a variable number of European officers of the

company and local chiefs.
✓ In the landraad of Colombo, the disava, the fiscaal (Vice president),
tombouder (keeper of the registers of land), eerste landmeter (chief
surveyor), kapilein der mahabadde (superintendent of the
cinnamon department), maha mudaliyar of the governor’s gate,
atapattu mudaliyar were permanent members.
✓ Disava ot the chief resident usually had knowledge of local
conditions.
✓ Asian chiefs were present to guide Europeans on the local customs.
✓ No salaries. Cloak money was paid. Expenses when there were
inquiries at a distant place.
III. Civile Raad (Civil court)
▪ Existed in Colombo, Jaffnapatnam and Galle.

▪ Originally established in order to relive the high court of justice of a number of small
causes which the latter would otherwise have had to decide in the first instance.
▪ Composed of 7 or 8 persons selected each year by the governor and council from the
ranks of
▪ the servants of the company and of the colonists who were not in company’s service.
▪ No criminal jurisdiction, but exercised jurisdiction over all inhabitants, the
Europeans as well as others in causes not exceeding 120 rix-dollars in value.
IV. The informal dispute settlement mechanisms
▪ Lands vergadering (country assembly)

✓ This was an assembly which exercised judicial among other
functions in the district of Batticaloa.
✓ Composed of the members of the landraad and of all the native
chiefs of the district who held their employment from the governor.
✓ Decided on a verbal hearing of the parties and no appeal lay from
its decisions except directly to the government.
✓ Apart from the judicial functions, this assembly also supervised the
assessment and the collection of the revenue of the district.
✓ There was a similar assembly in Puttalam as well.
▪ Informal courts of public officials

✓ Fiscaals exercised civil jurisdiction in cases of small debts not
exceeding 100 rix-dollars and criminal jurisdiction in assaults and
other petty cases with power to inflict a fine not exceeding 100 rix-
dollars or to order the offender to be whipped.
✓ Disavas had a similar jurisdiction in petty cases in the areas under
their authority.
✓ Chief residents or the military officers in charge exercised judicial
powers in minor cases.
✓ Asian headmen and chiefs of various grades such as the vidanas,
the koralas and mudaliyars also had authority to decide the
disputes of the local inhabitants.
7. Law Applicable During Dutch Period & Later in Modern

Sri Lanka
▪ During the Dutch period, the law applied were as follows.
✓ Justice is administered to Dutch (and the other Europeans)
according to the law in force in the fatherland or statutes of Batavia.
✓ Natives are governed by the customs of the country if they are clear
& reasonable.
✓ Otherwise according to the Dutch Law.
▪ To the above sources must be added enactments of the Governor and the Council of
Ceylon, which as a general rule were equally binding on everyone.
I. Application of Dutch Law during Dutch Period in Ceylon
▪ The early colonial period of Dutch was to apply their laws to both European and local
inhabitants alike. But it baceme apparent that the non-recognition and destruction
of local customs created animosity and gave rise to opposition. Therefore it was felt
to be expedient to give effect to the customs of the people. Accordingly the Dutch while
applying their laws in criminal cases, gave affect to local customs in civil cases.
▪ By a resolution passed on 16 June 1625, some rules of procedure was formulated by
two courts at Batavia and certain statutes enacted by the States of Holland, were
promulgated as laws to be observed in the administration of justice in the East Indies.
▪ But, these laws or the enactments of Batavian government did not always provide
“the common civil laws as practiced in United Netherlands”.
▪ The chief sources of that law were statutes enacted by States-General and by the
statutes of
▪ the states of Holland and the “books of authority” written by some jurists.
II. RDL Applicable in Modern Sri Lanka
▪ In Sri Lanka the Dutch recognized and administered the laws and customs of the
Tamils of Jaffna, of the Muslims and the Mukkuvars, applying their own Dutch laws
when the local laws were silent or were not in accordance with their own conceptions
of morality and public policy.
▪ Dutch law was applied in the following manner,
✓ If there were local statutes made by Govenor in Council such would
be applied first.
✓ If the above is either not clear or unavailable, the Batavian statutes

would be applied. If the above 2 were not available, resort to the
Laws of Holland.
✓ Finally, if all 3 were unavailable, treaties of classical jurists would
be invoked.
8. The Ancient Sinhalese Legal System (Kandyan Law)
I. Laws and Customs of the Sinhalese
▪ There was no systematized law to guide the administrators of justice. Sinhalese law
was unwritten law. It was untouched by legislation. The law was therefore almost
entirely composed of customs and traditions and a few edicts of kings carved on rocks.
There are no laws but the will of the King and whatsoever proceeds out of his mouth
is immutable law.
There are 7 areas to be discussed.
i. Hindu laws and customs
▪ Since the Sinhalese people had been mainly Hindu in the first few centuries, it is
possible that they brought some Hindu customary laws with them together with their
religious beliefs.
▪ Kingship, caste system, patriliny and diga marriage, concept of gama or village
around the wewa or tank.
▪ It is conceivable that some at least of the Hindu laws current at the time reached Sri
Lanka during the Gupta period.
ii. Canonical writings, practices and rites of Buddhism
▪ With the advent of Mahinda and the conversion of King Tissa to Buddhism, there
arose a great ecclesiastical body, the order of monks, the Sangha.
▪ A set of rules which took the form of a code called the Vinaya or Vinaya Pitaka. The
infringement of these rules entailed punishments.
▪ Vihara gam - land given by kings to the Buddhist monasteries.
▪ Rules of succession to temples and temple lands called sisyanu sisyaparamparawa
and siwuru paramparawa started to develop.
▪ Maghata – non-slaying of wild animals in forests and non-killing of fish in tanks. This
was the beginning of game and fauna protection laws.
▪ Abhaya – rights of sanctuary
▪ Sanghika – the method by which property was given to the Buddhist temple by the
ceremony of pouring water on to the hands of the donees.
▪ Erection of sima or boundaries on lands granted to temples.
iii. Sakyan and Mauryan customs
▪ Sakyan sources - The independence the married women enjoyed in respect of their
personal and proprietary relationships.
▪ Mauryan sources – Incidents of land tenure and some gam sirit, customs relating to
the muttettu fields of a gabada gama known as ande cultivation, position of officials
such as gamarala, lekama and kankanama.
▪ Certain incidents of land tenure and some gam sirit seem to have derived also from
Mauryan sources.
iv. Pera sirit (former or immemorial customs)
▪ These are the customs observed by former kings which the later kings followed as a
matter of conservative policy.
▪ Caste laws, practices of Buddhism
▪ In the Sinhalese sytems, sirit (customs) or pera sirit (former or immemorial customs)
held the same position as the common law in England.
v. Kula sirit (customs of clans and castes)
▪ These were the customs which were handed down for generations in families.
▪ Among the members of a family it has an obligatory force and distinguishes the family
by its rules from other families.
▪ These rules chiefly concerned adoption, marriage, descent and devolution of property.
vi. Gam sirit (customs mainly connected with village land)
▪ Customs affecting land tenure, rights to water from the reservoir, ande and betma
system of cultivation, irrigation practices
vii. South Indian customs
▪ Cholas and pandyans of south india.

▪ Polyandry, caste system
II. Administration of justice in ancient Ceylon
▪ The most striking feature of the ancient Sinhalese kingdom was the elaborated
judicial system that prevailed. The King was, to use a modern term to describe his
place in the judicial system, the fountain of justice.
i. Gamsabhava –
▪ The village tribunal was composed of the village elders. They met at an ambalama or
under a shady tree. They dealt with minor offences and focused on amicable
settlements. Fines could be imposed on the presence of the headman.
ii. Ratasabhava –
▪ Composed of the delegates of each village in a particular district. Had original
jurisdiction in matters of caste, marriage and social status. Appeals from the
gasabhava were heard.
iii. Sakki balanda –

▪ Inquired into sudden deaths. Composed of prominent men of the district. It acted like
the Coroner’s court of today.
iv. The juidicial powers of the state officials

▪ Vidanes – Officials with the least judicial power who possessed a minor civil and
criminal jurisdiction. They acted like police officers. Allowed to levy small fines and
corporal punishments on persons of low caste.
▪ Liyanaralas, undiralas, koralas – Allowed hearing complaints of petty thefts and
trivial disputes. Limited power in land disputes.
▪ Mohottalas and arachchis – They could grant decrees known as wattoru after
adjudicating in a land dispute. Power to deal with criminal offences.
▪ Chiefs – Civil jurisdiction on all persons limited by the inability to adjudicate in some
land cases.
▪ Disavas and adigars – Jurisdiction over all persons on civil and criminal matters
except Royal court issues.
▪ Maha naduwa – Composed of higher officials and chiefs. Initially was established
to advise the king, however, later acquired original jurisdiction.
▪ King – He had the ultimate judicial authority.
III. Procedure in the courts
▪ Institution of proceedings – It was difficult to bring the wrong doer to the court.
The complainant would seize a valuable of the wrongdoer and when he complained of
the seizure, he could be brought to court.
▪ Trial – Oral proceedings, no lawyers, and each party recited their version. The
complainant stated his case. The defendant answered and the evidence by those
unable to attend was allowed, preferably if the written evidence was confirmed by an
oath of temple. Evidence of witnesses, system of oath or the system of ordeal (oil, hot
iron, and cobra) were used to arrive at the decision.
▪ Decree – The decree of the court was communicated to the parties orally. Occasionally
it was given in writing.
▪ Appeals – No formalities or no specific period within which an appeal should be
instituted. They were not aware of res judicata i.e. to prevent the retrial of a case that
was previously heard and decided. Penalties imposed were not uniform and the caste
was considered.
IV. Personal law and Territorial law
▪ A territorial law applies to all persons resident in a particular territory. Personal law
applies to a section of the population in a given territory on account of certain common
factors which they all possess.
▪ Only Muslim law is a personal law in the real sense. Kandyan and Tesawalamai
cannot be said to fall exactly within either category. They are sometimes called
customary laws or special laws. Kandyan law, today, applies only to the Kandyan
Sinhalese consequent to the decision in Williams v. Robertson.
V. Sources of Kandyan Law
▪ The sources of the modern Kandyan law are:

✓ Books of authority
✓ Decisions of the Board of Commissioners
✓ Case decision
✓ Statute law
9. Tesawalamai
▪ “Tesawalamai” means the customs of the land. This is the system of law applicable
to the Tamil inhabitants of Jaffna. The customs usages of Malabar were derived from
the Marumakattayam law which constitutes the main basis and ground work for the
Tesawalamai Law.
▪ The origin of Thesawalamai can be traced back to the customs and usages of the
Dravidians of the Malabar coast of India.
▪ Tesawalamai was codified by the by the Dutch and after approval by the Mudaliyars
as to its accuracy, it was applied in resolving civil disputes from 1707 to 1806. The
law codified was not the original Thesawalamai but one with the modifications made
during the Portuguese and Dutch rule. Application continued under British
(Proclamation of 1799).
▪ Sabapathi v Sivaprakasam – the 1806 English translation of the Thesawalamai
Code was authoritative (not the Dutch Code)
▪ After the Legislative Enactments in 1938, there is no doubt that the English
translation is law since it is incorporated into the said enactment.
▪ Following statutes have influenced Tesawalamai:
i. Jaffna Matrimonial Rights and Inheritance Ordinance of 1911
ii. Jaffna Matrimonial Rights and Inheritance (Amendment) Ordinance,
No.58 of 1947
iii. Tesawalamai Pre-emption Ordinance of 1947
I. Applicability of Tesawalamai
▪ The generally accepted view is that the Tesawalamai applies to:

i. All persons who come within the description of Malabar
ii. Having Inhabitancy in the province of Jaffna
▪ However there are several sections of the Thesawalamai that applies to the lands in
the Northern Province irrespective of the race or the nationality of the person who
owns it.
▪ 1806 regulation declared the phrase “Malabar” inhabitants giving rise to the
argument that Thesawalamai Code contains only the indigenous laws of the Tamils
from Malabar and that the Code was only applicable thereto.
▪ Chetty v Chetty
Court rejected the argument that Thesawalamai applied only to the Malabar
inhabitants of Jaffna on 1806 and did not apply to Tamils from India or Ceylon who
have settled in Jaffna after 1806 and held that the term “Malabar” was synonymous
with the term “Tamil” and that the Code was applicable to all Tamil inhabitants of
the Jaffna province
▪ Tharmalingam Chetty v Anurasalam Chetty –

A person whose father had come from Ramnad in South India long after 1806 was
governed by the Tesawalamai.
▪ Savundranayagam v Savundranayagam
Son of Colombo Chetties who settled in Jaffna is not subject to Thesawalamai as
Colombo Chetties did not have a Jaffna inhabitancy and not on the basis that he did
not come within category of Malabar.
▪ King v Perumal
Native of South India Living in Central province was not subjected to Tesawalamai
because he was not an inhabitant of Northern Province.
▪ Velupillai v Sivakamipillai
‘Inhabitancy’ applied to a person who had acquired permanent residence in the
nature of a domicile in Jaffna; Middleton J “One who has his permanent home in
Jaffna”
▪ The Thesawalamai applied to not only Tamil inhabitants of Jaffna in 1806 amd their
inhabitants, but to any Tamil who have come to at any time to settle down in Jaffna
and who acquired Jaffna inhabitancy.
▪ Since it is undesirable to lay down general rule as to the circumstances which shows
Jaffna inhabitancy, the question whether a person has a Jaffna inhabitancy or not is
a question to be determined based on the facts and circumstances of each case.
II. Tesawalamai as a Personal Law
▪ Tesawalamai is not a personal law in the real sense because it applies to a class of
persons namely Tamils, who are bound by a personal link (Malabar), who must in
addition be resided in particular territory. There it can be considered as a personal
law with territorial limitations.
III. Territorial Basis of Tesawalamai
▪ “Jaffnapatam” only applied to the Jaffna peninsula during the Dutch period. But as
a result of interpretation by courts of “Province of Jaffna” was extended to a wider
area almost coinciding with the Northern Province of Modern times.
✓ Tesawalamai has been applied to the Tamils of Mannar District –
Marisal v Savari
✓ Tesawalamai does not apply to Tamils of Trincomalee or Batticaloa
– Wellapulla v Sitabelem
✓ Tesawalamai does not applied to Tamil woman descended from
Jaffna, resided in Puttlam, on the basis that she had not resided in
Nothern Province – Fernando v Proctor
✓ Seelatchy v Visuanathan – a person subject to Thesawalamai
who owns property in Colombo; Thesawalamai law will apply to
right of succession and matrimony over such property.
✓ Sivagnanalingam v Suntheralingam – Thesawalamai applied
to them wherever they are and to their property wherever it is
located
▪ Tesawalamai Code specifically stated that it would apply ONLY to Tamils in the
Jaffna Province and not to persons living outside Northern Province. Also Tamils
outside the Northern Province will be governed by General Law.
▪ One of the significant factors is that a person subjected Thesawalamai can change his
personal law by changing his or her inhabitancy unlike in Kandyan Law.
10. Muslim Law

▪ In early times Sinhalese Kings applied Sinhalese laws to Muslims generally, but
recognized Muslim religious usages.
▪ The Dutch Governor Falk received a code which was prepared by Mohomedean
theologians from the government of Batavia and after the acceptance of Moorish
settlements in Sri Lanka, this code became the personal law of Muslims in respect of
succession, inheritance and divorce. This was later subjected to many changes.
▪ Muslim Marriages and Divorce Act No. 27 of 1929 made certain significant changes
to the law. Special system of Quazi courts were established to administer Muslim
law.
▪ Shariat means the canon of Islam and embraces the totality of Allah’s
commandments. It is not law in modern sense. It is a doctrine of duties which contains
a guide to ethics.
▪ Fiqh is also based on the canon law but is confined to that part of canon law which
is used to describe the law as a science or a jurisprudence and which a citizen is
legally bound to obey.
I. Source of Muslim Law
▪ Historical sources
i. Quran – The main source of Islam law which was revealed by the Holy Prophet.
It is a code of conduct. It contains teaching of the prophet as well as references from
the prophets who came before him. This was the basis of the Holy life and
contained relatively a least amount of legal principles.
ii. Hadiths and Sunna – Hadiths consist of the counsels and oral teachings of the
Holy Prophet, his actions, daily practices. It forms the body or oral law. 2 classes
namely, hadiths nabawee and hadiths koodsee. The imam al muslim and the
imam al bukhari are compiled works which contain the hadiths. Hadiths
constitute the story of a particular occurrence while sunna is a practice deuced
from it.
When the Muslims were confined to Mecca and Medina the Quran and Hadiths
were sufficient to regulate their relations. However, with the spread of Islamic
faith to all parts of the world, conditions changed and developments took place.
Thus, the Quran and Hadiths were inadequate to meet all circumstances. This
gave rise to the other 2 sources, Ijma and Qiyas.
iii. Ijma and Qiyas – Ijma is the consensus among the companions of the prophet.
Qiyas is the knowledge deducted by way of analogical deduction from the
principles laid down in the Quran and Hadiths.
iv. Subsidiary sources – Judicial decision, texts or codifications, customs

v. Schools of Muslim law
1. Sunni sect – Haniffa, Malik, Shafi (Sri Lankan Muslims belong to this
sect), Hanbal
2. Shia sect – Ithna, Ashari, Ismailis, Zaydis
II. Sources of Muslim law in Sri Lanka
▪ Code of Muslim law in Sri Lanka – This was promulgated in 1806. It is doubtful
whether it as prepared during the British times or whether it was a mere translation
of a code compiled by the Dutch. R v. Miskin Umma held that it was a very rough
codification.
▪ General principles of Muslim law in Sri Lanka – These were used when the code
was silent on particular matters.
▪ Statutory laws governing Muslims in Sri Lanka – The Muslim Marriage and
Divorce Act, Muslim Mosques and Charitable Trusts or Wakfs Act No. 51 of 1956
III. Applicability of Muslim law in Sri Lanka
▪ Khan v. Maricar – Held that Muslim law is applicable to all Muslims and immigrants
from India known as coast moors and also to afghans.
▪ The factor which governs the application of Muslim law is not whether a person
belongs to a particular race or community but whether or not he professes the Islamic
faith. Muslim law applies to all muslims, whether they are so by birth or conversion.
▪ Case laws relevant for applicability
Queen v Obeysekera – no sufficient evidence to raise the
presumption of profession of Islamic faith
Reid v Attorney-General; Attorney-General v Reid
Katchi Mohamed V Benedict
Abeysundera V Abeysundera – overruled Reid V AG as well as AG V Reid.
11. Sources of Law - Introduction and Statutes

▪ Sources of Law generally means how the law originated. But technically, it means
sovereign or the state from which the law derives its force or validity. In Civil Law
systems, one has to look into the relevant code and in Common Law there is a range
of sources hierarchically ordered.
i. Legislation (Primary & Secondary)
ii. Judicial Precedent
iii. Local Customs
iv. Equity
v. Religion
▪ Though Sri Lankan legal system is a combination of Civil and Common Law, the
courts have predominantly followed the Common Law and the above sources will be
therefore applicable in the local context.
I. Legislation as a Source of Law
▪ Legislation is recently originated yet the most important source of law. Legislation applicable
to Sri Lanka are fivefold namely;
i. Acts of the UK Parliament
There are two types.
✓ All acts passed by the UK parliament during 1796-1947, extending
to all colonies. All these are now repealed.
E.g. Copyrights Act 1911, Air Navigation Act 1920
✓ UK Acts directed only to Ceylon

Only one Act available and it is also repealed by 1972 & 1978 constitutions.
E.g. Ceylon Independence Act 1947
ii. Prerogative Instruments Issued by the Sovereign of UK

According to Campbell v Hall, the Royal Prerogative could legislate for
colonies. E.g.
✓ Colonial Constitutions (Colebrrok-Cameron/ Donoughmore) issued
as Orders—in- Council
✓ Charters under Great Seal, Letters of Patent and Royal Instruction
✓ Ibra-Lebbe v Queen Privy Council’s opinion later converted into
Order-in-Council
iii. Statutory instruments
Privy Council was given power to,
✓ Make subordinate legislation
✓ Extend powers under a particular Act

E.g. Medical Act 1886 conferred on the Privy Council Authority to
enroll medical graduates in the list of medical practitioners. Order-
in-Council of 27th Dec 1887 extended the legislation to Ceylon.
iv. Legislation by the Local Legislature
Three types of Local Legislation.
✓ Regulations and Proclamations issued by Governors
✓ Colonial Legislatures
✓ Parliament of independent Ceylon passed Acts
v. Delegated Legislation
A body other than the supreme legislature is authorized to legislate
in pursuance of an existing statute or primary legislation.
✓ Ministers, officials of government departments issues RULES,
REGULATIONS & ORDERS
✓ Local Authorities pass BY-LAWS
✓ Article 136 of the Constitution provides for insurance of riles by
Supreme Court to monitor functions of the court.
✓ 13th amendment of the 78 constitution made Provincial Councils –
If the state is intact as a Unitary State, the devolved powers would
then be more delegated legislation rather than legislation proper.
II. Publications of Statutes and Delegated Legislation
▪ 1 to 4 are published in government gazette. Also published as legislative enactments

in 1931, 1965 and 1980.
▪ 5 is also published in Government Gazettes and there are six volume series gazette
published in 1956.
III. Nomenclature for Statutes
▪ 1656 – 1796 Placaats

(Not included in legislative enactments of Ceylon. Those who invoke such placaats
must prove that it has been introduced in Sri Lanka – Karanchihamy v Angohamy)
▪ 1796 – 1930 Charters, Letters of Patent, Orders-in-Council
▪ 1931 – 1948 Ordinances (under State Council & Legislative Council) 1948 – 1972 Acts
(Parliament)
▪ 1972 – 1977 Laws (National State Assembly) 1978 – Today Acts (Parliament)
12. Doctrine of Judicial Precedent

▪ Precedent – previous instances or cases which may be taken as an example for
subsequent cases with similar acts or circumstances can be justified.
▪ Doctrine of binding precedent (DBP) means the decision of a previous or superior
court binds a future or a lower court. Not every part of the authoritative judgement
binds, only the ratio decidendi. Prerequisites of the Doctrine of binding precedent are;
1. Existence of a hierarchy of courts
2. Clear law reporting
3. Rule of law
▪ Ratio decidendi is the combination of the following 3 stages according to Goodhart.
✓ When the applicable law is used
✓ On material facts
✓ Decision is arrived at
▪ Q v. Lathem – ratio is the preposition of law based on material facts of a case as
objectively determined. The materiality of the facts is an objective one and is not a
matter for the judge.
▪ Obiter Dicta – The non-binding section of the judgement. It could be the casual
remarks, analogies, hypothetical facts. Carlill v Carbolic Smoke Ball Company was a
case about a woman and the carbolic smoke ball. The judge used a situation of a dog
to explain the scenario. This explanation is considered obiter.
▪ Distinguishing – This is a device used by the lower court to free itself from the
judicial authority. In distinguishing, the lower court accepts the ratio, but it says the
material facts are different. In Fibrose case, House of Lords both distinguished and
ignored the French Maritime Case. There are 3 forms of distinguishing.
1. Distinction of facts
2. The relegation of objectionable judicial opinions to the position of obiter
3. When the same decision is arrived at for different reasons
▪ Over ruling – This device is for the later superior court to overrule any lower court
decision. It is the nullification of a prior decision. i.e., when a precedent is over ruled
it is definitely and formally deprived of all authority.
▪ Pepper v. Hart overruled the decision made in Davis v. Johnson. This was
regarding whether the hansard could be used as evidence before the court. The
circumstances under which overruling takes place are:
✓ When overruling effects rights and duties of parties in a substantial
number of cases decided in the past, the superior courts will not
overrule unless the authority is blatantly erroneous.
✓ Long unchallenged decisions will be overruled when they appear
unjust.
✓ When a particular judicial authority has been considered weak and
subject to justifiable criticisms.
✓ Overruling operated prospectively and not retrospectively
✓ In criminal matters, binding is less than in civil matters. In
criminal matters where the inherent justice and the liberty of the
subject require it, previous decisions are not adhered to with the
same rigidity as in civil cases.
▪ Refusal to follow – This is used by courts of co-ordinate jurisdiction. It leaves 2
equally powerful authorities for later lower courts.
I. Circumstance destroying binding precedent
▪ It should be noted that the applicability of some of these exceptions has not yet been
expressly or fully considered in the law of Sri Lanka.
1. Abrogated decisions – If the statute on which the judicial
authority is based is repealed or amended, then that judicial
authority is abrogated. (Rabot v. De Silva)
2. Per incuriam – It means mistake. Under this, later lower
courts are not bound by the predecessor authority. It refers to a
judgement of a court which has been decided without reference
to a statutory provision or earlier judgement which would have
been relevant. (Morelle Ltd v. Wakeling)
3. Precedents sub silentio – If decision Z can be arrived at by 2
legal principles; X and Y. the judgement expressly states only X
and not Y. then Y cannot be cited as authority for the decision
Z. (Sameed v. Segutamby)
4. Effects of changing social and economic circumstances
13. Custom as a Source of Law

Customs Generally
▪ Customs are contemporary with any organized community. There are customs,
✓ Which are Etiquettes and expressions of decency
✓ Which are legally binding.
Customs in International law

▪ Article 38(1) of the Statutes of International Court of Justice has listed the following
as sources of international Law.
International Conventions 38(1)(a)
i.
Customary Norms of International Law 38(1)(b)
ii.
General Principles recognized by Nations 38(1)(c)
iii.
Secondary Sources; Equity – Opinions Of Jurists – Judicial Decisions
iv.
38(1)(d)
▪ Customary Norms have more persuasive value than treaties and conventions which
bind only the parties to the treaty.
▪ Customary Norms of International Law is made of two parts.
✓ State Practice (objective element)
✓ Opinio Juris (subjective element) customs have no binding
authority in the absence of this component.
Local Customs
▪ Means the usages in a particular locality. (I.e. in Sri Lanka, customs among
fishermen, Tamils of the North – Tesawalamai, Kandyans etc.)
I. Tests for Authoritative Customs
▪ These tests are discussed in Muttalibu v Hameed.
i. Customs must be ancient.
✓ In English Law this means “reasonably ancient”. In RDL this means

“beyond memory of living man”. (Chinnappu v Kanakkar)
ii. Custom must be reasonable.
✓ Reasonableness is measured under these criterions.

1. Custom must not violate COMMON INTEREST/PROPERTY – Ernest v
Ahamadu Lebbe
2. Custom must not hinder DEVELOPMENT (Socio-Econ) – Baba Appu v

Abaran
3. Custom must not be arbitrary – Kitnen Kangany v Young
4. Custom must not be contrary to good morals – Bryant v Foot/ Kitnen
Kangany v Young
iii. Custom must be definite or certain
✓ It will become unenforceable due to the uncertainty – Fernando v

Fernando
iv. Confirmity with statute law
✓ This is an EL requirement. However in RDL, even a statute could

be made obsolete by a later custom. It was accepted by Kandar v
Sinnachipillai.
v. Conformity with basic principles of common law
✓ Elaborated in Fernando v Fernando
14. Religion as a source of law in Sri Lanka

I. Historical point of view
▪ In ancient societies, religion and customs were nearly merged. They contributed to
the formation of the present law; Buddhist Temporalities Ordinance. There are some
legal systems which are nearly identified with religious laws; Islamic law.
II. Geographical point of view
▪ Europe – There was mutuality between Christianity and greek and roman civil legal
systems.
▪ Asia Pacific – Hinduis and Islam are religions of the majority of people in Asia.
Buddhism is not applicable to the lay people, only applies to the clergy. Christianity
has influenced Australia, New Zealand legal systems.
▪ Sri Lanka – Hinduism, Buddhism, Islam and Christianity have influenced the legal
development of the country. Religion has influenced the legal system in the following
ways.
✓ Religion has influenced the drafting of legislations such as Muslim
mosques and charitable trusts ordinance.
✓ When a person’s civil and property rights are affected.
✓ To administer religious places of worship.
✓ When religious practices have formed into customs.
15. Equity as a source of law in Sri Lanka

I. Concepts of Equity
▪ Means principles of natural law which mitigates the rigour strict law.
▪ Considered as the spirit behind the law. Not a direct source of modern law.
▪ Has 3 manifestations.
✓ Just & reasonable interpretation of law
✓ Application of general law to individual situations, just &
reasonably
✓ Filling gaps in law (Statutory and Common law)
II. English Equity
▪ English equity has been evolved through Chancellor, who later became
institutionalized through the Chancery Courts.
▪ The maxims of equity became guidelines for chancery administration.
▪ In Sri Lankan context, SL courts are both common law and equity courts. Therefore,
unlike in England, there’s no need to establish fiction of the existence of contract
before the plaintiff can procure the money lent to the defendant – Dodwell v John
▪ English equity principles came to SL mainly through statutes such as Trust
Ordinance, “Just and
▪ Equitable” standards in Industrial Disputes Act
▪ English Equity added to Sri Lanka through judicial Activism (Injunctions, Specific
Performance, Rescission & Rectification of documents)
III. Roman Equity
▪ Roman concept of Equity envisage principles such as Bona Fides ( When there is
malicious abuse of rights, good faith protects the innocent )
▪ Other principles: aequm et bonum, ratio naturalis
▪ In SL context, the Roman equity principles that are currently applied in Sri Lanka
are Unjust Enrichment; Laesio enormis
16. Courts of First Instance

▪ There are 5 courts of first instance as per the Judicature Act No. 2 of 1978. Judges of
these courts shall be appointed by the Judicial Service Commission. Section 6(1).
I. High court of the Republic
▪ Criminal jurisdiction is upon an indictment presented by the Attorney General: Sec
9(1). It has jurisdiction to try offences committed by any sri lankan anywhere in the
world, within the territorial sea, air space above, within an aircraft or ship registered
in sri lanka. It can pass any sentence including the death sentenct: sec 10. It can have
a trial by jury or trial at bar.
▪ Admiralty jurisdiction is on the high court of the Colombo judicial district: sec 13.
Minister by a gazette can empower other courts.
II. District Court –
▪ Exclusive jurisdiction in all civil (except family) matters such as revenue, trust,
insolvency and testamentary: sec 19. The district court is the upper guardian of all
minors, persons of unsound mind etc.: sec 20. Appeals for judgements could be made
to the court of appeal.
III. Family courts –
▪ Sole jurisdiction in matrimonial disputes, actions for divorce, nullity and separation,
damages for adultery, maintenance and alimony, custody, guardianship, adoption etc
: sec 24. In practice, district court functions as family courts.
IV. Magistrate’s court –
▪ The schedule to the criminal procedure code indicates where the magistrate is
empowered to hear cases in a summary trial: sec 30. Other offences may be preceded
by a preliminary inquiry. Maintenance ordinance empowers the magistrate to
determine maintenance pending divorce action.
V. Primary courts –
▪ Civil jurisdiction in matters where the monetary value of the claim or demand does
not exceed Rs. 1500. : Sec 32. Schedule 4 of the judicature act indicated where the
primary courts have no jurisdiction. Local authorities also may invest primary courts
with jurisdiction. The minister may by rule indicate when the primary court is
empowered to finalise criminal matters.
17. High Court

I. High Court of the Republic
▪ Established under the Judicature Act No.2 of 1978 in pursuance of Article 111 of the
constitution.
▪ Consist of not less than 10 and not more than 40 judges.
▪ Judges of the High Courts are appointed by the President on the recommendation of
the judicial Service Commission made after the consultation with the Attorney
General.
▪ Removal by the President subject to disciplinary control by the President on the
recommendation of the Judicial Service Commission. [Article 111 of the constitution]
▪ Age of retirement: 61 years. [Sec. 6(3) of the Act]
▪ Exercise both Criminal and Civil jurisdiction. It can conduct trial by jury or trial at
bar.
▪ Can impose any sentence or penalty prescribed by law.
II. Provincial High Court

▪ Established under Article 154P of the constitution.
▪ Vested with the appellate and re-visionary jurisdiction within each province in
respect of the orders and judgements of magistrate Courts, primary Courts, and
Labour Tribunals etc. [Under the 13th amendment]
▪ Appointment, removal and age of retirement of judges are similar as high court of the
republic.
III. Commercial High Court

▪ Established under High Court of the Provinces Act of 1996.
▪ Has the jurisdiction to hear civil actions where the cause of action was arisen out of
commercial transactions in which the debt, damage or demand exceeds Rs.5 Million.
▪ Also has the jurisdiction over all the proceedings under Intellectual Property Act.
IV. High Court of Civil Appeal

▪ Established with the objective of expediting the civil appeal in District Courts.
▪ Appeals in District Court are heard by the High Court of Civil Appeal.
18. The Supreme Court

▪ Article 118: General jurisdiction. It is the highest and final superior court of record.
✓ Jurisdiction in respect of constitutional matters
✓ Jurisdiction for the protection of fundamental rights.
✓ Final appellate jurisdiction
✓ Consultative jurisdiction
✓ Jurisdiction in election petitions
✓ Jurisdiction in respect of any breach of the privileges of parliament
✓ Jurisdiction in other matters which parliament may by law vest or
ordain.
▪ Article 119: Constitution of the Supreme Court. The Supreme Court shall consist of
chief justice and of not less than 6 and not more than 10 judges.
▪ Article 120: Constitutional jurisdiction. Sole an exclusive jurisdiction to determine
any question as to whether any bill or any provision thereof is inconsistent with the
constitution.
▪ Article 121: Ordinary exercise of constitutional jurisdiction in respect of bills. Says
that the jurisdiction of the Supreme Court with regard to ordinary exercise of
Constitutional jurisdiction extends to determining the questions which are stipulated
in Art. 120 should be invoked by President by a written reference addressed to the
CJ or by a citizen by a petition in writing addressed to the Supreme Court.
▪ Article 122: Special exercise of constitutional jurisdiction in respect of urgent bills.
Accordingly in the respect of a bill which is in the view of the Cabinet of Ministers,
urgent in the national interest, the President shall by a written reference addressed
to the CJ, require the special determination of the Supreme Court as to whether the
Bill or any provision of such is inconsistent with the constitution
▪ Article 123: Determination of Supreme Court in respect of bills regarding their
constitutionality.
▪ Article 124: Validity of bills and legislative process not to be questioned.
▪ Article 125: Constitutional jurisdiction in the interpretation of the constitution. It
has sole and exclusive jurisdiction to do so.
▪ Article 126: Sole and exclusive jurisdiction to hear and determine any question
relating to the infringement or imminent infringement by executive or administrative
action of any fundamental right. Any person who alleges that his FR has been
infringed may by himself pr by an AAL on his behalf should apply to the Supreme
Court by way of a petition in writing addressed to the Supreme Court within one
month of such infringement.
▪ Article 127: Final court of civil and criminal appellate jurisdiction. Thus the orders
given by the Supreme Court in correction of all errors in fact or in law has been
committed by the Court of Appeal or any Court of 1st instance, tribunal or other
institution shall be final and conclusive.
▪ Article 128: Right of appeal.
▪ Article 129: Consultative jurisdiction. When the president has a question of law or
fact or even the speaker could refer.
▪ Article 130: Jurisdiction in election and referendum petitions. For any legal
proceeding relation to election of president or the validity of a referendum and for
appeals from the court of appeal regarding election petitions.
▪ Article 131: Jurisdiction in respect of breaches of parliamentary privileges. Power to
punish any person for the breach of the privileges of the parliament.
▪ Article 132: Sitting of the Supreme Court. The jurisdiction can be exercises in
different matters at the same time by several judges of that court sitting apart. When
it is not a unanimous decision, the decision of the majority will be considered.
▪ Article 133: Appointment of ad hoc judges. If there is a lack of quorum of the
permanent judges to hold or continue any session of the Supreme Court, the CJ can
appoint the President of the COA as an ad hoc judge with the previous consent of the
President.
▪ Article 134: Right to be heard applies to the attorney general, any party to any
proceedings, any other person or his legal representative when granted by the court.
▪ Article 135: The registry of the Supreme Court shall be in charge of the registrar
who shall be subject to the supervision, direction and control of the chief justice.
▪ Article 136: Rules of the Supreme Court.
19. Mediation Boards

▪ Mediation Boards Act No.72 of 1988, later supplemented by the Mediation (Special
Categories of Disputes) Act No. 21 of 2003 operates within Alternative Dispute
Resolution (ADR) Mechanisms.
I. Alternative Dispute Resolution
▪ This is a dispute resolution mechanism which disputants themselves are given an
opportunity to discuss their problems, without any formal legal representation.
▪ The object of this process is not to direct liability or find fault but to facilitate
resolution.
▪ Helps disputants to identify their real problems and motivate them to resolve
amicably and peaceably.
II. Mediation Boards in Sri Lanka
▪ Currently there are 258 centres in Sri Lanka, consist of 3 members each whose tenure
is 3 years appointed by the President. Two of them shall be judges of superior courts.
III. Provisions of Mediation Board Act of 1988
▪ Sec 2 – 3 members shall be appointed by the President, 2 of them shall be judges of

superior courts.
▪ Sec 3 – Powers (Appoint, transfer, dismiss disciplinary control over mediators,
supervise and control performance of mediators, issue directions when necessary )
▪ Sec 4 – The minister designates number of mediation boards.
▪ Sec 5 – Panels of Mediators
▪ Sec 6 – Jurisdiction
Criminal – offences in the schedule 2 may be mediated as long as they are fully or
partially committed within territorial jurisdiction.
Civil – All civil disputes valued at Rs.100, 000 except those stated in schedule 3 such
as matrimonial disputes, mortgages, admiralty…
▪ Sec 8 – Court directed mediation
▪ Sec 9 – Constitution of Mediation board
Each party appoints their own mediator where two together will select the third. In
the event of where parties cannot appoint mediators Chairman of the panel will
appoint them accordingly.
▪ Sec 10 – Duties
Notify the disputants and such other persons to resolve the dispute Require any other
person and/or documents to be presented Convene as many conferences needed for
settlement
Complete mediation within 30 days
▪ Sec 11 – Certificate of settlement
▪ Sec 12 - Certificate of non-settlement
▪ Sec 14 – Non-compliance
If the parties fail to comply with the settlement, the victim of non-compliance will
report to the board.
▪ Sec 15 – No legal representation (Spouse or parents of minors are permitted.)
▪ Sec 16 – Privilege of witness as per evidence ordinance
▪ Sec 17 – Prescription
20. The Sources of the classical Roman-Dutch Law
I. Treatises of classical RDL jurists –
▪ Unlike in English law, the work of jurists are considered as a source of law in RDL.
They are authentic statements of the law itself and are regarded as authoritative
unless proved to be incorrect. In the event of a conflict of opinion among the jurists
on the same point, the court has discretion as to which opinion to follow. Some jurists
are Hugo Grotius, Johannes Voet, S. Van Groenewagen Van der Made, Simon Van
Leeuwen, and Ulrich Huber.
II. Statutes –
▪ The paramount legislative authority was the states-general, the federal legislature
of the republic of the united Netherlands. The political ordinance of 1580 and the
statutes of Batavia are among the well-known statutes.
III. Judicial decisions –

▪ It is a subsidiary source. Some published volumes of Dutch courts are Cornelius
Neostadious and Johannes A. Sande.
IV. Juristic opinions –

▪ They differ from treatises because they contain opinions and not authoritative
statements, they deal with isolated questions and are not comprehensive and they
are not commentaries on the Roman law.
V. Customs –
▪ The native laws and usages found in the Netherlands. The law developed; the
influence of customs dwindled. However, a custom if proved to exist, and if it had not
been abrogated by disuse, would be enforced by the courts.

Legal History - 2020 (English)

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Pro|Studies 2020 Preliminary Year

First compiled and distributed in Sri Lanka in 2017 by the Pro|Studies

Text and illustration copyright © Prostudies 2018/2019/2020

All rights reserved

For free distribution

Pro|Studies 2020 Education Committee

Yasith De Costa Brammadha Sivapathesundaram

Ashani Dilakshi Ashwini Prabakaran

Achala Tharaka Achini Malsha Perera

01. Different Systems of Law in Sri Lanka

02. An Overview of the Laws of Sri Lanka

03. Introduction of English Law to Sri Lanka

04. The Reception of English Law through Judicial Activism

05. The Administration of Justice under the Dutch Government

06. Court System during the Dutch Period

08. The Ancient Sinhalese Legal system (Kandyan Law)

10. Muslim Law

11. Sources of Law - Introduction and Statutes

12. Doctrine of Judicial Precedent

13. Custom as a Source of Law

14. Religion as a source of law in Sri Lanka

15. Equity as a source of law in Sri Lanka

16. Courts of First Instance

17. High Court

18. The Supreme Court

19. Mediation Boards

20. The Sources of the classical Roman-Dutch Law

1. Different Systems of Law in Sri Lanka

Portuguese Influence on the Laws Sri Lanka (1505 – 1696 AD)

Dutch Influence on the Laws Sri Lanka (1696 – 1796 AD)

▪ Kandyan law never came under the Roman Dutch Law.

British Influence on the Laws Sri Lanka

2. An Overview of the Laws of Sri Lanka

I. Criminal law, procedure and evidence

Criminal Administratio Code of

Civil Administration Civil Procedure

II. Constitutional law

III. Commercial and mercantile law

IV. Law of tort/ delict

VI. Law of property

VII. Law of persons

VIII. Law of succession

IX. Law of remedies

3. Introduction of English Law to Sri Lanka

Reception of English Law by Statutes

I. Copies of Statutes Enacted in the UK

II. Codification of English Case Law Principles

III. Incorporation of English Law by Reference

IV. Casus Omissus in a Local Statute

▪ These enactments contained no statement of substance of the law and directly

incorporated by reference to the law in force in England.

V. The Extention of Acts of the United Kingdom Parliament before 1948

▪ Certain Acts of Parliament were extended to British Colonies in general, became a

VI. Assumption of British Sovereignty (Prerogative Power of British

▪ English Law became applicable as a consequence of the assumption of British

4. The Reception of English Law through Judicial

5. The Administration of Justice under the Dutch

▪ The main administrative divisions of Ceylon were centered on Colombo,

▪ The respective groups of Sinhalese inhabited from Kandyan Kingdom, Tamils

6. Court System during the Dutch Period

I. Raad van Justitie (High court of Justice)

▪ There were high courts of justice in Colombo, Jaffnapatnam and Galle.

II. Landraad (Land or Country or District court)

▪ This was below the high court of justice.