Chapter 2 (A)

OVERVIEW of SL law (part-1)

2 (a). The laws of Sri Lanka

The laws of Sri Lanka (like in South Africa)

have been influenced by the two great legal
traditions – the civil and the common law
systems.
Roman-Dutch law is the common law, in the
sense (residuary law) of Sri Lanka.
 A statute is the primary source
of law.
 Statutes could be based on
English law or
 may be enacted in view of local
needs and circumstances or
 be a restatement of customary
or religious law.
 Some statutes are incorporated by
reference the English law on a
particular subject.
  
 Where there is no applicable
statutory principle,
 the courts will first look to see
whether the parties are governed
by one of the exceptional systems
of law [e.g. Kandyan/
Muslim/Teswalamai]
  and if not, they will apply the
Roman-Dutch law.
 2. A (1) Criminal law,
procedure and evidence
  
 Criminal law (mainly Penal
Code)and the law of evidence
(Evidence Ord) are statutory. the
early statutes were copies of
Indian enactments which were
drafted for use in British India.
 The Criminal Procedure Code, 1898
which was a copy of the Indian
enactment
 was replaced by the Administration
of Justice LAw, 1973,
  
 which in turn was replaced by the
Code of Criminal Procedure Act,
1979.
 The rules of civil procedure
which were embodied in the
Civil Procedure Code, 1889
were derived from rules of
Indian Procedural law, English
Rules of Court and the New
York Civil Procedure Code.
  
   The Civil Procedure Code, 1889 was
replaced by the Administration of
Justice law, 1975
  
 which in turn was replaced by the
Civil Procedure Code (Amendment)
Law, 1977 which in effect revived
most of the provisions in the Civil
Procedure Code, 1889.
  
2.A. (ii) Constitutional law

 During the period of British rule

there were two constitutions;
Colebrooke-Cameron; and
Donomorough. What follows is
the post independent
constitutions
2 A (ii) (a) Ceylon Independent
Constitution

  
 Culminating in 1948 whereby
power and sovereignty vested in the
United Kingdom was gradually
transferred to the local inhabitants.
The Ceylon (Constitution) order in
Council, 1946 took effect from Feb.
4, 1948 was based on the
Westminster model.
  
  
 Some salient features of this
Independent Constitution:
 = Parliament (with 2 chambers)
 = Executive (King/PM/
cabinet/civil servants)- sec.45
  
2 A (ii) (b) Constitution of the Socialist
Democratic Republic of Sri Lanka
 
 A Constituent Assembly was
summoned in 1970 to draft and
proclaim a new Constitution. The
Republican Constitution was
proclaimed in 1972 when Sri Lanka
became a Republic.
Salient features of the 1972
Constitution:
 @ National States Assembly
(unicameral)
 @Westminster model (President-
sinecure)
 @ Bill of rights (non-justiciable)
  
2 A (ii) (c) Constitution of the
Democratic Socialist Republic of Sri
Lanka
   The Constitution of the
Democratic Socialist republic of
Sri Lanka was introduced in
1978, replacing the 1972
Constitution.
  
Salients features:
 (i) amalgamation to the Westminster
model with the French presidential
system.
 (ii)Parliament (unicameral)

 (iii)Executive President with full

powers separately elected, who
appoints PM/Cabinet
 (iv)Public service subservient to the
President
2 A (ii) (c) (i) Writs (Certiorari- Quo
Warranto-Mandamus-Prohibition)

 Writs (Certiorari- Quo Warranto-

Mandamus-Prohibition) based on
English Law incorporated in the
Constitution
 English principles of judicial review
of administrative action are applied
by the courts, e.g. the rules relating
to discretionary power, the retention
of discretion, the abuse of discretion
and the rules of natural justice
followed in Sri Lanka are based on
 5© (4) Writ of Habeas Corpus &
Fundamental Rights
  
 The principle of individual liberty,
so vital in a democracy, is taken from
English law. As in England, the writ
of habeas corpus (Re Bracegirdle
(1937) 39 NLR 193. is a vital
safeguard of the liberty of the
individual.
  
 The Sri Lankan Constitutions of
1972 and 1978 (to a greater
extent) contain provisions which
provide the means for assertion
of fundamental rights.
2.A. (iii) Commercial and
Mercantile law

 Principles adopted from English

law:
 Bills of Exchange Ord, Sale of
Goods Ord;
 partnership, companies, insolvency
(now mended;
 banks and banking, maritime
matters, carriage of goods and
insurance.
 
2 (A) (iii) (a)The sphere of influence
of the Roman-Dutch law
 The influence of Roman-Dutch law is
discernible in the law relating to
succession, persons, property and
obligations.

 But the application of Roman-Dutch

law in these areas is restricted by
statutes.
 What follows is a brief study to what
extent RDL, EL and Statutes have
been enforced
 
2 (A) (iv) The law of tort or
delict
 2 (A) (iv) (a) RDL influence on
tort/delict
 Liability in the Roman-Dutch law of
delict is founded on the Aquilian
action and the actio injuriarum.

 The actio injuriarum was available

where the personal dignity or
reputation of an individual had been
affected.
 Apart from the two general
actions mentioned above, there
were other remedies such as
the Pauperian action, the
Aediles edict, the actio de pastu,
the actio de effusis vel dejectis,
and the actio de suspensis
which were available in
particular situations.
2 (A) (iv) (b) EL influence on
tort/delict
 EL influence on tort/delict
  
 There are torts (nuisance,
conversions, the rule in Rylands
v. Fletcher) which impose
liability in English law in the
absence of fault or negligence.
 The English tort of nuisance has
been incorporated in to the law
of Sri Lanka and the rule in
Rylands v. Fletcher and the tort
of conversion may also be
regarded as part of the law of
Sri Lanka, though there are
contrary views and judicial dicta.
2 (A) (iv) (c) Statutory Laws
governing tort/delict
 Statutory Laws governing tort/delict
  
 The Law Reform (Contributory
Negligence and Joint Wrong-Doers)
Act, 1968, and the Crown Liability in
Delict Act.1969- have modified the
law governing contributory
negligence and Crown liability in
delict.
  
 Prior to the latter act the
question of Crown liability in
delict was governed by the
English law before the Crown
Proceedings Act. 1947. These
are the only two statutes in the
field of torts law.

 Thus RDL (ie the Laws of the
United Provinces) which was
incompatible with the British
concept of sovereign authority of
the Crown would be
unenforceable;
 Kodeesawaran v AG (1969)
72 NLR 337 [PC]
 The UK Parliament or King’s
prerogative or the local
legislature may change any
preexistent law.
 
 The King in Parliament or the
King by his prerogative power
are capable of legislating for the
colony. But the prerogative
power of the King cannot
overpower the Parliament