Saturday, January 5, 2013

A few countries have what are termed mixed systems of law in that they contain elements of both these categories. The Sri Lankan system of law falls into this third “mixed” category. The reasons for this are historical.

When the Dutch conquered Sri Lanka in 1656 they brought with them their laws, which were derived from the Roman law. Hence the name “Roman-Dutch” law, since after its arrival in the Netherlands the Roman law mingled with the Dutch legal system in so far as it was then in existence.

The Roman-Dutch law introduced by the Dutch however did not spread throughout the country. The Kandyan Provinces remained unconquered by the Dutch and the legal system in those areas continued to be, as before, the Sinhalese or what is now termed the Kandyan law. The laws peculiar to different ethnic groups also continued, such as those of the Muslims and of the Tamils of Jaffna. It is now believed that the Dutch law may have been applied only to a limited group of persons, i.e. to the Dutch settlers, to the locals who either served them or had converted to Christianity, and to the Sinhalese and Tamils who lived inside the forts.

Thereafter the British arrival in 1796 and Entire Island passed into British hands by 1815. According to British law when a colony is ceded (handed over by the previous rules to the British, as in the case of Sri Lanka) the laws of the colony as they were, continue to be in force, until later changed. The British assumed that Roman-Dutch law was the general system in the country and enacted that the Roman-Dutch law shall “continue”, along with the customary laws of the Muslims, Tamils and Sinhalese. The basic law of Sri Lanka was thereafter regarded as Roman-Dutch law and it was applied as such during British rule and to date.

However, the long duration of British rule saw English law exert a profound influence over the development of the legal system and laws of Sri Lanka. A large number of statutes were passed incorporating English law and English legal principles. English law also found its way into the decisions of the courts. At the same time there were indigenous statutes reflecting local needs. Thus Roman-Dutch law can be seen today as the residuary law of the land. It is applied in situations not covered either by statutes, case-law or the customary laws.
In this way both the Roman-Dutch law and the English law became rooted in the Sri Lankan legal system. In certain fields of law the influence of the Roman-Dutch law is greater, while in others that of English law is more.  In many areas in which the law is contained in statutes the influence of English law is greater. Criminal law, procedure and the law of evidence are statutory and show a strong identification with English law. Administrative law, although it is not found in statutes but built up in case-law, is also entirely English in character.

In most areas of private or civil law influence of Roman-Dutch law is stronger, for example the law of delict or torts, the law of contract, family law and in particular the law of property. An exception is commercial law, where the Roman-Dutch law was repealed and English legal principles incorporated in a series of statutes such as the Companies Act and the Sale of Goods Ordinance.

Another sense in which the legal system of Sri Lanka is mixed is that it includes what are called the special laws. A part from the general law which applies to everyone, which is made up of English and Roman-Dutch law, Sri Lanka also has Muslim law, Kandyan and Tesawalamai, which apply respectively to Muslims, Kandyan Sinhalese and to Tamil inhabitants of the “Province” of Jaffna. Much of the special laws are now found in statutes, such as Muslim Marriage and Divorce Act and Kandyan Marriage and Divorce Act. Those to whom the special laws apply have a choice of being governed either under the general law or their special law. Kandyan law and Tesawalamai are not as commonly used today. Muslim law on the other hand continues in significance and regularly comes up for consideration before the courts.


One Comment

  1. First time I heard that Sri lanka was conquered by Dutch. As far as I learnt in History, the coastal areas were under their control but never the whole country as same as during Portuguese time.