Legal History & Legal Systems of Sri Lanka

LEGAL HISTORY
PRELIMINARY YEAR

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CONTENTS
1. Sources of Law……………………………………….………….……………….. 1
2. Legal systems of Ceylon………….……………………………………………... 7
3. Pre Colonial Period……..…………………………………….………..………… 11
4. Administration of Justice under the Dutch…………………………………… 13
5. Courts of First Instance………………………….………………………………. 15
6. Superior Courts……..……………………….…………………………………… 17
7. Alternative Dispute Resolution…….……………………….………………….. 21
8. Reception of English Law…..……………………….……………………………22
9. Tesawalamai Law…………………………….………………………………….. .26
10. Roman Law…….……………………….………………………………………….31
Law Students’ Union of Sri Lanka

1. SOURCES OF LAW
‘Sources of Law’, as a concept, has a two-fold meaning as far as generality and technicality
are concerned. In general, it means the origins of law and as to how certain laws have been
originated in the first place. However, in a broader technical sense, it refers to the sovereign
or the state from which the law derives its force and/or validity. This technical sense again is
two-fold as in a Civil Law system, only the appropriate code would matter whereas in a
Common Law system, following sources would matter. (Hierarchically ordered)
1. Legislation (Primary and Secondary)
2. Judicial Precedent
3. Local Customs
4. Equity
5. Religion
Despite the Sri Lankan Legal System being a combination of the Civil Law and Common Law
systems, Sri Lankan Courts have predominantly followed the latter. Hence, the
aforementioned sources would be mainly applicable in the local context. (However, the latter
two sources and sources of special laws such as Tesawalamai, Muslim and Kandyan laws
have largely been modified by Legislation and Judicial Precedent.)
However it’s worth noting that in the international context, following sources would deem
applicable. [Statutes of International Court of Justice – Article 38(1)]
1. International Conventions
2. Customary norms of international Law
3. General Principles recognized by nations
4. Secondary sources such as Equity, Opinion of jurists and etc.
01) Legislation as a Source of Law
Legislation or Statutes applicable to Sri Lanka are five fold. Namely;
(1) Acts of the UK Parliament (Acts passed by the UK legislature in the period between
1796 – 1947)
a. UK Acts extending to all colonies – All are now repealed (Examples: Air
Navigation Act (1920), Copyrights Act (1911), etc)
b. UK Acts directed to Ceylon only – Only one Act, The Ceylon Independence
Act (1947) which was then constitution, repealed by 1972 and 1978
constitutions.
(2) Prerogative Instruments Issued by the Sovereign of UK
In accordance with Campbell v Hill judgment, the Royal prerogative could legislate for
colonies captured, ceded or settled and this included the maritime provinces of Ceylon in 1801
and the entire country in 1815 following the Kandyan convention. The British crown retained
legislative power through prerogative.
Examples:
• Colonial constitutions such as Colebrook-Cameron and Donomorough were issued as
Orders-in-Council.
Law Students’ Union of Sri Lanka 1

• Charters under Great Seal and Letters of Patent & Royal Instructions were issued by
Governors or Governor-Generals. (As a practice of Prerogative instruments)
• Ibra-Lebbe V Queen (65 NLR 433), the Privy Council’s opinion is also converted into
an Order in Council.
** It was held by Privy Council, even in thee Post-independent Ceylon/Sri Lanka, the British
crown would have the Judiciary Power vested upon them in contrast to the Legislative and
Executive powers that were taken away from them through the Independent Constitution.
(3) Statutory Instruments
This instrument empowered the Privy Council to either;

(i) To make subordinate legislations
(ii) Or to extend the powers under a particular Act
Examples:
• Medical Act of 1886 which conferred on the Privy Council authority to enroll medical
graduates in the list of practitioners. Order in Council of 27th Dec 1887 extended the
legislation to Ceylon
• Some Acts passed by the UK Parliament that are not applicable to Ceylon unless
otherwise stated/extended by an Order in Council
**However, this type of legislation ceased to exist in the Post Independent Ceylon
(4) Local Legislation
Mainly, 03 types of local legislations.

i) Regulation and Proclamations issued by governors (As the necessary power was
vested upon them to legislated for colonies) 1801 – 1833
ii) Colonial Legislatures (State Council or Legislative Council made Ordinances) 1833
– 1947
iii) Parliament of Independent Ceylon passed Acts 1947 – 1972

National States Assembly under the Socialist Democratic Republic of Sri Lanka
1972 – 1977
Parliament of the Socialist Democratic Republic of Sri Lanka 1978 to date
(5) Delegated Legislation
A body other than the Supreme Legislature (The Parliament) is authorized to legislate in
pursuance of an existing statute or Primary legislation.
i) Ministers and respective officials of government departments issue Rules,

Regulations & Orders.
ii) Local authorities pass By-Laws
iii) Article 136 of the Constitution provides for issuance of rules by the Supreme Court
to monitor functions of the court.
iv) Controversial 13th Amendment have made Provincial Council – If the state is intact
as a unitary state, then the devolved powers would more be delegated legislation.
Publication of Statutes and Delegated Legislation
• Acts of the UK Parliament, Prerogative instruments issued by the Sovereign of UK,

Statutory Instruments and Local Legislation were/are published in Government
Gazette. (Also published as legislative enactments published in 1931, 1956 and 1980)

• Delegated Legislation is also published in Government Gazette. There are six volumes
series of such Gazettes published in 1956.
Nomenclature for Statutes
1656 – 1796 Placaats (Not included in legislative enactments of Ceylon and those who invoke
must prove it has been introduced to Ceylon; Karonchihamy V Angohamy 8 NLR 1)
1796 – 1930 Charters, Letters of Patents, Orders in Council
1931 – 1948 Ordinances under State Council & Legislative Council
1948 - 1972 Acts of Parliament
1972 – 1977 Laws of National State Assembly
1978 – To date Acts of Parliament
02) Judicial Precedent as a Source of Law
Judicial Decisions are two fold in Common Law and Civil Law. Civil Law is primarily
concerned with the persuasive authority and a series of previous judgments. (Thus treaties of
classical jurists are authoritative than judicial decisions)
However, since the local context is concerned with Common Law, it is important to take a
look at the basic principle of judicial precedent the Common Law is concerned with, Stare
decisis (Single binding precedent)
A) Doctrine of Binding Precedent (DBP)
• Can be defined as the decision of a previous/superior court that binds a future/lower

court.
• However, important to note that only the RATIO DECIDENDI would bind the
judgment and not every part of the authoritative judgment.
• The general presumptions of DBP are (i) Existence of a hierarchy of courts (ii) clear
law reporting (iii) the Rule of Law
01) Ratio Decidendi:
• Rule of law, expressly of implicitly treated by the judge as a necessary link for
the decision (Rupert Cross)
• The Combination of the following stages (i) When the applicable law is used
(ii) On material facts (iii) Decision is arrived at (Goodheart)
Example: The conviction of murder is in respect to the (1) applicable law of section 294
of the Penal Code, (2) assuming there are three material facts named X,Y,Z and on the

application of law to the material facts, the decision arrived at (3) is that the Court
found the accused guilty of the charges.
Then, a future/lower court when controneted with (1) and (2) must garner a similar
judgment of similar charges.
Queen V Lathem (1901) AC 495
02) Obiter Dicta:

“Judge’s expression of opinion uttered in Court or in written judgment, but not essential to
the decision and therefore not legally binding as a precedent”
“An incidental remark”
To simply put, it refers to the non-binding sections of the judgment. In a broader sense it
means,
(i) When a court cuts down the expressed ratio

(ii) A later superior court alleges that the Ratio is too wide and unnecessary for the
decision
(iii) A ruling of a judge is based on hypothetical facts
(iv) If two reasons are given for a ruling but one is only hypothetical in sense
Example: Carlill V Carbolic Smoke Ball Company (1893) 2 QB 256

03) Distinguishing:
• A device used by the lower courts to free itself from the binding nature of the
judicial authority.
• However, in doing so, the lower court accepts the ration but states that in the
instant case Material Facts are different.
• A device to free up from the rigour of judicial precedent.
• This enables law to develop (dynamic) and not allowing it to be static or

archaic.
There are three forms of distinguishing, as stated in the Fibrosa Case 6 Modern LR 48
(i) Distinction of Facts
(ii) The Relegation of objectionable judicial opinions to the position of obiter
(iii) When the same decision is arrived at for different reasons, distinguishing
enables the lower court to make its own opinion.
04) Overruling:
This device is for the later superior court that it may overrule the lower court decision. This
has a retrospective effect except for decisions which are res judica.
Circumstances for overruling are,

(i) 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)
(ii) Long unchallenged decisions will be overruled when they appear manifestly
unjust
(iii) When a particular judicial authority has been considered weak and subject to
justifiable criticism
(iv) Generally overruling operates Prospectively and not retrospectively
(v) In Criminal matters, binding is less than in Civil matters (Bandahamy V
Senannayake 62 NLR 31)
05) Refusal to follow:
• This device is used to courts of coordinate jurisdiction. (Example: Court of

Appeal in 1990 and 1995) That is, Court of Appeal in 1973 is superior to the
Supreme Court in 1949.
• Refusal to follow leaves two equally powerful authorities for later lower courts.
B) Circumstances Destroying Binding Precedent
• Exceptions to the doctrine of stare decisis
(i) 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 Silve 10 NLR 140)
If the decision Y (1980 of SC) has overruled decision X (1970 of SC) and decision
Z (CA in 1990) was given under the overruled decision of 1970 SC, then the
High Court today is bound by neither.
(ii) Per incuriam:
This literally means mistake. Under this, lower courts are not bound by the
predecessor authority. Per incuriam refers to a judgment of a court which has
been decided without reference to a statutory provision or earlier judgment
which would have been relevant.
Can occur in following ways;
• If rendered in ignorance of a statute but not on a wrong or mistaken

interpretation
• If rendered in ignorance or forgetfulness of a case authority
• This ignorance must go to the Ratio of the authoritative judgment
(iii) Precedents Sub Silentio
If decision Z can be arrived at by two legal principles (X&Y) and the judgment
expressly states only X but not Y, then Y cannot be cited as authority for the

decision Z. (Therefore, Rule Y has passed off ‘Sub Silentio’) Example: Sameed V
Segutamby 25 NLR 481
(iv) Effects of Changing Social and Economic Circumstances

03) Customs as a Source of Law
The Concept of Customs should be looked at it in 03 perspectives. Namely;
• In General Perspective
• From International Law point of view
• As local Customs
i) Customs Generally;
Customs are contemporary with any organized community. That too is again two-folding.
• Customs which are only etiquettes/expressions of decency
• Customs which are legally binding (“It is unwritten right brought in gradually by the
usage of those who practice it and having strength of law” – Commentary on the
Pandects) Examples: Teswalamai, Muslim Law and other primitive laws.
ii) Customs in International Law;
According to the Statute of the International Court of Justice, Customs are listed second as a
mean of (Source) settling disputes. [Article 38 (1) ]
38 (1) b – Norms of Customary International Law
** It is important to note that although customs are listed second, they hae more persvasive
value than conventions. These customary norms are made of two parts, namely;
(i) State Practice (Objective Element)

(ii) Opinio juris (Subjective Element) – In this absence of this
component, customs have no binding authority.
iii) Local Customs
Local customs are usages in a particular locality (Village, Trade Group or a Community; In
SL, Customs among Fishermen, Tamils of the North and Kandyan can be categorized in this
aspect)
General Customs are not considered as customs, since any law that apply to all Sri Lankans
must be found either in Statute or Roman Dutch Law.
Tests for Authoritative Customs:
In a decided case Muttalibu V Hameed 1950 (52 NLR 97), the tests needed to establish a local
custom are neatly listed. Hence, it requires a customs to be of Usage besides being (i)
Notorious (ii) Certain (iii) Reasonable and (iv) Must not offend against the intention of any
legislative enactment (ibid.s.52, p.39)

**No usage however extensive will be allowed to prevail if it’s directly opposed to positive law.
Thus the following requirements stand firm;
01) Custom must be ancient
The Test of Antiquity was understood in English Law on an arbitrary date in 1189 AD and
was later defined as ‘reasonably ancient’. However, in Roman Dutch Law, antiquity means
‘beyond the memory of living man’ (Chinappa V Kanakka 13 NLR 157)
02) Custom must be reasonable
Reasonableness is measured under terms of;
a) Custom must not violate Common Interest/Property: Ernest V Ahamadu

Lebbe 21 NLR 248
b) Must not hinder development (Socio-Economic): Baba Appu V Abaran 8 NLR
160
c) Must not be arbitrary: Kitnen Kangany V Young 14 NLR 435
d) Must not be contrary to good morals: Bryant V Foot / Kitnen Kangany V
Young
03) Custom must be definite or certain
Elaborated in F’do V F’do 42 NLR 279
04) Conformity with Statute Law
• A requirement initially found in English Law [Sinnethnagam V Meeramohideen (1915)

1 CWR 96]
• However, in Roman Dutch Law, even a statute could be made obsolete by a later
custom. [According to the South African case Seaville V Colley (1891) 9 SC 39 which
was later applied and accepted in Kandar V Sinnachipillai 36 NLR 362]
05) Conformity with basic principles of Common Law

Elaborated in F’do V F’do 42 NLR 279, as cited by Jennings & Tambiah. LJM Cooray
contradicts, however.

2. LEGAL SYSTEMS OF CEYLON

Many different systems of law have affected the development of law in Ceylon;
• Sinhalese law (referred to as Kandyan law today)
• Buddhist law
• Hindu law
• Tesawalamai law
• Islamic law
• Mukkuvar law
• Christian Customary law
• Portugese law
• Roman- Dutch law
• English law
The brief outline of the development of laws which existed in Ceylon
1. Laws before 1505-

• When the Portuguese arrived in 1505 there were 2 major sections of people which were
the Sinhalese who spoke the sinhala language and the Tamils whose language was
Tamil.
• The Sinhalese practicing Buddhism occupied the interior parts of Ceylon as well as the
Southern and Western parts of the land.
• The Tamils professing Hinduism occupied the Northern area of the land.
• There were also other sects excluding the above mentioned people such as,
o A community of Muslim traders has settled on the western seaboard.
o The Mukkuvars - a fisher caste from Western coast of India had settled down
in Jaffna,Kalpitiya,Puttalam and Batticaloa
o Other communities such as the Chetty and Parsee merchants who had
migrated from India and settled in Colombo and the Paravars from South
India who lived around the pearl fisheries of Ceylon.
• Sinhala Law-
Included Sinhalese customs , Buddhist Canonical teachings, Hindu laws and
customs of the Mauryan and Sakyan groups.
After arrival of Portuguese this law was divided as Low Country Sinhalese
laws and Kandyan laws.
Wiliiam v Robertson
• Teswalamai
Brought to Ceylon by Tamil immigrants who came from the coasts of Malabar
and Coromandel.
Later turned into the legal system by which the tamils of Northern kingdom
(North and East of Ceylon) were being governed by.
• Muslim law
Muslim traders who came to Ceylon adopted the Muslim law which was
existing world wide to govern their dispute in Ceylon.
Reid v AG
Abeysundera v Abeysundera

• Mukkuvars,Chetties,Parses and Paravars

All these legal systems (Mukkuvars, Chetties,Parses and Paravars) were
recognized by the Dutch and British rulers
• Christian Customary law
Catherine Garcia v Gunawardane
Proclamation 1815.
Ensured the continuity for laws and institutions that existed in the Kandyan provinces and
the rights and privileges of all the inhabitants of the Kandyan provinces subject to the night
of the British Sovereign to introduce change.
Proclamation of 1815-Article 4 &8 –Gives assurance to continue the existing laws and
institutions.
Article 4 –Guarantee to all classes of people within the Kandyan Provinces to continue their
Civil Rights and immunities, according to the laws, institutions and customs established and
in force amongst them.
Article 8 –The administration of Civil and Criminal justice, over the Kandyan inhabitants of
the said province is to be exercised according to established forms and by the ordinary
authorities subject to the rights of the government to introduce change.
Article 9 –Provisions regarding administration of evil and criminal justice to all other persons
civil or military residing in or resorting to these provinces, not being Kandyans.
Intended to exclude Europeans as well as local population that could migrate to Kandyan
provinces from the application of Kandyan Law and tribunals.
Proclamation of 31st May 1816–This did not abrogate or repeal the proclamation of 1815, it
only made a clarification of the legal position.
The proclamation of 1816 too attempted to limit the Kandyan Law only to the inhabitants of
the Kandyan provinces. (Attempted to exclude persons coming into the newly acquired
territory from the application of the indigenous Kandyan law).
Proclamation of 1818–Proclamation provided for the continued application of laws according

to the ancient and established usage to the inhabitants of the Kandyan Province.
Birthed after the rebellion of 1818 that took place in the Kandyan provinces to overthrow the
British administration from the region
The proclamation of 1818 was introduced limiting the powers, rights and privileges of the
KnadyanCheifs.

The Ordinance No.5 of 1852 –Imposed restrictions on the operation of Kandyan Law.
The preamble declared;
That its purpose was to introduce into Ceylon the Law of England in Certain Matters and to
restrict the operation of the Kandyan law.
Section 5 –When there is a gap in the Kandyan Law, the law of Maritime Provinces should be
used to fill the gap.
Section 7 –Kandyan Provinces be governed by the criminal law of the maritime province.
Section 8 –European, burghers were excluded from the Kandyan law on marriage and
inheritance by this ordinance.
Section 9 – Muslims in the Kandyan Province were excluded from the application of Kandyan
Law –The Mohammadan Code Should apply.
Kandyan Marriages Ordinance 1870–Marriages between Kandyans and non-kandyans could

be solemnized under this ordiance
Kandyan Succession Ordinance of 1917–Clarified the law applicable to children of mixed

marriages solemnised under the (repealed)Kandyan Marriages Ordinance 1870.
Kandyan Marriages and Divorce Act 1952 –This Act repealed the Earlier Ordinance
· Declares that marriage can be solemnized under the Kandyan law only between kandyan
Parties
Case Law
Mongee v. Siarpaye– Held; Kandyan law is a territorial law.
The Sinhalese Kings applied the kandyan law to all their subjects irrespective of question as
to whether they were Kandyan or not.
They also applied the Kandyan law to all lands situated within the Kandyan territory
This the Kandyan Law was applicable to Tamil inhabitants within the Kandyan territory.
Kershaw v. Nicoll
Wife of a sootsman domiciled in the kandyan Province and that basis she acquired the status
of a wife governed by Kandyan law.
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.
Williams v. Roberton;-Overruled this case
Williams v. Roberton
Kandyan Law should apply only to a kandyans and that others who integrated to the
province after 1815 should be governed by the law of the Maritime Provinces.
Kandyan law was not applicable as a territorial law to all residents in the Kandyan province
but applied only to people who can be called as kandyans who lived in those provinces as at
1815.

3. THE PRE COLONIAL PERIOD

The most eminent feature in the ancient Sinhalese kingdom which existed during the pre-
colonial period was the judicial system of that time.
• The king was the head of the fountain of justice whereby he had the power to
delegate his judicial functions to various officers of state throughout the
country.
• Appeals were allowed from the lowest courts to the king.
• The other important organs which administered justice were the
Gamsabhawa, Ratasabhawa, Sakki balanda, Courts of Royal officals (Vidanes,
liyanaralas, mohottalas, korales, disaves and adigars)
1. Gam Sabhawa
Gam sabhawa / village tribunal whose origin dates back to the origin of the village
itself was composed of the village elders.
Dealt with very minor offences such as small debts, minor quarrels, boundary disputes
and thefts.
The procedure for settling disputes basically comprised of the following; admonition,
compromise, and common sense unsullied by legal technicalities and rigid rules of
procedure.
The Gam sabhawa had minor punitive jurisdiction to impose fines but only if the
headman was present.
2. Rata sabhawa
Rata sabhawa composed of delegates of each village in a particular district.

It had original jurisdiction in matters relating to caste, marriage and social status.
Rata sabhawa situated in the dry zone had appellate jurisdiction to refer matters from the
Gamsabhawa.
3. Sakki balanda
Composed of prominent men of the district.

Held inquiries relating to sudden deaths.
The functions of this tribunal has been compared to that of the Coroner’s court of today.
4. Judicial power of the state officials
The extent of the jurisdiction of the various officials depended on their status and comprised
of the following ;
i. Vidanes
ii. Liyanarales/Undirales/Korales
iii. Mohhottales/Archchis
iv. Chiefs
v. Disaves/Adigars
vi. Mahanaduwa
vii. King
v In inflicting punishments, the officials considered the caste and rank of the
wrongdoer.

Vidanes
• Officials with the least judicial power and they possess minor civil and criminal
jurisdiction .
• Their duties were somewhat similar to that of police officers and they had the
authority to levy small fines and inflict corporal punishments on persons of law caste.
Liyanarales/undirales/korales
Had the authority to hear complaints regarding petty thefts and other trivial minor disputes,
limited power in land disputes and also limited power of imposing punishments which was
however slightly wider than vidanes.
Mohottales/Arachchis
• These two classes of officials could grant written decrees known as wattoru after
adjudicating in a land dispute. Had the power to deal with criminal offences as well.
• The Mohottales of the 7 korales / Uva /Sabaragamuwa which were isolated areas had
greater power.
Chiefs
• The lekams /ratemahathmayas and the chief royal officials attached to the king’s court
and household had civil jurisdiction over all persons subject to their orders.
• Their civil jurisdiction was limited only by their inability to adjudicate in some land
cases.
Disaves/Adigars
• They had extensive jurisdiction over all persons within the territory they ruled.
• Adigars were next in line to the king and could take the cognizance of cases civil and
criminal except those concerned with Royal lands and disputes which arose between
members of the Royal court.
Mahanaduwa
• Consists of higher officials and the chiefs (Adigars / disaves) this court originated as
a result of the king referring judicial matters which submitted to him to his chiefs.
• These officials originally acted in an advisory capacity and reported back to the king,
who delivered the verdict. In course of time Mahanaduwa acquired an original
jurisdiction as distinct from it’s earlier function of merely advicing the king.
King
The king was considered as the ultimate judicial authority. He had a wide range of powers
which extended over all matters whereby he exercised both original and appellate
jurisdiction.
He exercised extensive jurisdiction in the following cases,
v Suits arising between any principal servant or chief of his court or where such
a person was a defendant and those relating to Royal lands.
v Suits between priests claiming rights to the incumbency of principal temples.
v Serious crimes - treason / rebellion/ conspiracy against the king or his
family
- All homicides
v Could also try cases submitted to him by his officials or even where a
petitioner approached him individually either directly or through a court of
official.

4. ADMINISTRATION OF JUSTICE UNDER THE DUTCH

Introduction
• Ceylon came under the supervision of Eastern Headquarters i.e. the Dutch East
India Company situated in Batavia, Java.
• This body was in turn governed by the States General which was the governing
organ in the Netherlands
• The courts in Ceylon exercised jurisdiction in the name of the States General of the
Netherlands.
Court Structure
• Formed by three courts of record.

Ø The Raden van Justitie(High Courts of Justice)
Ø The Landraden (Land or Country or District courts)
Ø The CivileRaden or StadsRaden( Civil or Town Courts)
The Raden van Justitie
• Raden van Justitiewas the most superior court on record.

• 3 such courts in Colombo, Jaffna and Galle
• Exercised appellate jurisdiction in criminal and civil cases
• Also had original criminal jurisdiction within their respective domains
• In both civil and criminal matters an appeal lay from the High Court of Galle and
Jaffna to the Colombo High court.
• An appeal lay from Colombo High CourtHigh Court of Batavia.
• No appeal from High Court of Batavia
• But there was an opportunity of a re-hearing by petition to the Governor General of
Batavia at the instance of the aggrieved party.
• There were at least 7 members sitting in these courts
• Governor appointed such members from and out of the members of the Raad van
Polity and from among civil and military officials.
• Lawyers appointed as members very rarely.
• At the very outset, Governor held chair of these courts, but later on a policy
decision, the Chief Administrative Officer who was next to the governor chaired the
court sessions.
• The Commander, who was the Chief Executive Officer in Galle and Jaffna chaired
the High Court in those provinces.

The Landraden
• Land Raad is next in the order of priority

• These courts were found in Matara, Jaffna, Colombo, Galle, Chillaw, Batticaloa,
Trincomalee, Mullativu, Mannar, Puttalam
• Primarily courts of civil jurisdiction
• Most cases involved in investigating the ownership of land (settling land disputes)
• Where there was no Raden van Justitie within a convenient distance Landraden
assisted in criminal trials as well (such decisions could be appealed to the Raden van
Justitie)
• Raden van Justitie couldn’t entertain civil cases until matter had been referred to a
Landraden for decision and leave to appeal had been granted by the Govenor.
• After 1743 it was Landraden which settled the dispute of Asian inhabitants residing
outside the Colombo town limits.
• An appeal from such decision could be made to the Raden van Justitie with the
consent of the Govenor.
• These courts comprised of Dutch and local officials as members.
• Members of Landraden were different from district to district
• Court was presided by the Disava, the Chief President of the District
• Vice President was the fiscal; person in charge of ‘tombos’, Mahabadde Captain,
Maha Mudali, AttapattuMudali
• In addition, membership included a fair number of local chiefs
• This enabled courts to administer justice according to the rules, customs and
traditions which were acceptable to the local litigants.
• Designed to be simple, inexpensive and convenient means of providing accessible
justice to the indigenous population.
The Civile Raden
• Lowest in hierarchy of Dutch courts in Ceylon

• Originally established I Colombo, Galle and Jaffna
• Relived HCt (Raad van Justitie) of numerous petty cases
• Civil Jurisdiction only ( NO CRIMINAL JURISDICTION)
• Appeal lay from these courts to the respective High Courts
• Originally had jurisdiction on matters which arose within town limits (within which
the court was located)
• Subsequently jurisdiction extended to the respective province
• Matrimonial jurisdiction in 1783 was vested in Civile Raden
• Helped cease workload of Raden van Justitie
• Appeal could be made against order of a civileraden of a province to the raden van
justitie of the same province.

5. COURTS OF FIRST INSTANCE
• Five Courts of first instance under the Judicature Act no 2 of 1978

1. Primary Courts
2. Family Courts
3. Magistrate’s Courts
4. District Courts
5. High Court of the Republic of Sri Lanka
Primary Courts
• The lowest level of court found in Sri Lanka.
• The Primary Court deals with civil actions in which the claim involved is under one
thousand five hundred rupees and criminal proceedings in relation to certain minor
offences laid down by regulation.
• The Primary Court also has the power to enforce by-laws and revenue claims of
local authorities.
• A Primary Court judge should encourage the parties to come to a settlement in any
civil matter before commencing an inquiry.
• Both in civil and criminal matters there is greater emphasis on amicably settling
disputes and grievances in the Primary Court.
Family Courts
• Sole jurisdiction in matrimonial disputes ,actions for divorce, nullity and separation ,
damages for adultery, maintenance and alimony, custody of children, guardianship
adoption etc.
Magistrate ‘sCourts
• The Magistrates’ Court has local jurisdiction in relation to many of the less serious
criminal offences as provided for in the Penal Code and other legislation.
• The Magistrate can issue search warrants and inquire into matters such as sudden
deaths and bodies found where the cause of death is unknown.
• The Magistrate has a host of miscellaneous powers, such as the making of orders for
maintenance and enforcing orders of other tribunals.
• Some offences which is to be tried by the High Court may be preceded by a
preliminary inquiry ( formerly known as “non summary procedure”) which
determines whether there is a prima facie case.
• Any statute can confer on the Magistrate Summary or non summary jurisdiction
District Court
• The District court is the court with original civil jurisdiction, in all matters in which
original jurisdiction has not been vested with any other court.
• A great proportion of the cases which come up before the District Court are to do
with land-partition, rent and ejectment of tenants, declaration of ownership, and
rights of way and other rights over land.
• The variety of land matters in the court is a reflection not only of the value people
place on ownership of property, however small but also of the fact that Sri Lanka is
still largely a rural country.
• The District Court also deals with testamentary, trust, revenue, debt recovery,
wrongful loss caused by negligence, defamation and so on and insolvency matters.

• The District Court is deemed to be the Family Court and in that capacity has
jurisdiction over matrimonial matters such as divorce, over custody and adoption of
children and declaration of legitimacy or illegitimacy.
• DC is Upper guardian of all minors, persons of unsound mind, idiots etc.
High Court of the Republic

• The High Court has original jurisdiction with respect to all the more serious criminal
offences.
• Under the Thirteenth Amendment to the Constitution, Provincial High Courts were
established with such jurisdiction within each Province. The High Courts were
further given much wider powers than before, in effect to make them Provincial
Courts of Appeal .
• They were conferred with similar appellate and revisionary powers as the Court of
Appeal, in respect of orders of Primary and Magistrate’s Courts and Labour
Tribunals of the Province as well as orders under the Agrarian Services Act relating
to land in the Province.
• The High Court was also vested with the jurisdiction to grant the administrative law
remedies of writs, which are available against wrongful action by public authorities.
It is only in the High Court that a trial by jury could take place.
• These powers come into effect when a High Court has been so gazette by the
Minister, and presently this has been done only with regard to the Western Province.
The High Court of Appeal

o This was established with the objective of expediting the civil appeals in
District Courts.
o Appeals in District Courts are heard by the High Court of Civil Appeal
The Commercial High Court

o Established under High Court of the Provinces Act of 1996.
o 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.

6. SUPERIOR COURTS
Supreme Court
• Article 118 –States that; The Supreme Court is the highest and final superior court of
record in the republic.
The Constitution granted the Supreme Court jurisdiction in respect of;

Constitutional Matters.
• Article 120
• The Supreme Court has the sole and exclusive jurisdiction to determine any bill or a
provision of a bill which is inconsistent with the constitution.
• Other that provided in Article 120 the validity of a bills and legislative process
cannot be questioned by any court.
• Article 125(1)
• It is only the Supreme Court which has the power to determine any question relating
to the interpretation of the constitution.
• Any such question which has arisen in the course of proceedings in any other court
should be referred to the Supreme Court for determination.
Protection of Fundamental Rights

• Article 126(1)
• The Supreme Court has the sole and exclusive jurisdiction to adjudicate on any
question pertaining to the infringement of any fundamental right granted by
Chapters III and IV of the Constitution.
• If the Court of Appeal has Prima Facie evidence of an infringement of provisions of
Chapters III and IV of the constitution it shall refer such matter for determination by
the by the supreme court.
• The Supreme Court has the power to;
• Grant relief or make directions which are just.

• Refer the matter back to the Court of Appeal if there is no finding of an infringement of a
fundamental right.
Appellate Jurisdiction
• Article 127(1) –states that; the Supreme Court is the Final Court of Civil and Criminal
appellate jurisdiction for the correction of all errors in fact of law, which are
committed by any lower court, tribunal or such institution.
• Article 128(1) – there is a right of appeal to the Supreme Court from any decision of
the Court of Appeal if the Court of Appeal grants permission to appeal or at the
instance of any aggrieved party.
• However there should be a substantial question of law involved.
• Article 128(2) –The Supreme Court can grant special leave to appeal to the Supreme
Court even where refused by the court of appeal. (Matter of public importance).
• It may affirm, reverse or vary any such decision of the Court of Appeal.
• Article 127(2) –Supreme Court may;
• Issue such directions to any court of first instance
• Order a new trial or further hearing of the justice of the case requires

Consultative Jurisdiction
• Article 129(1) –if it appear to the President of the Republic that a question of law or
fact has arisen or is likely to arise which is of public importance he may refer that
question to the Supreme Court for Consideration.
Election Petitions
• Article 130 –Supreme Court has jurisdiction to adjudicate in election petitions with
regard to;
• The election of the president
• Any appeal from the court appeal in an election petition case.
Parliamentary Privileges
• Article 131 –The Supreme Court has jurisdiction in respect of breaches of
Parliamentary Privileges.
Practice and Procedure

• Article 136(1) –The Supreme Court power to make rules regulating its practice and
procedure.
• It can make rules for;
• Granting of bail
• The admission, suspension and removal of attorneys-at-law
• Attire of judges, attorneys-at-law, officers of court, persons attending court.
• Appointment of jurors.
• Binding effect of the decisions of the Supreme Court.
Court of Appeal
Jurisdiction
• Article 138(1) – Court of Appeal has appellate jurisdiction for the correction of any
error in fact or law by any court of first instance, tribunal or other institution.
• Article 139(1) –The court of Appeal can;

• Affirm, Reverse or modify any judgement
• Give directions to a court of first instance
• Order a new trial or further hearing
• A decision of a court or tribunal can only be reversed or varied only if;
• There is no prejudice to the rights of the parties
• It occasioned a failure of justice
Powers of the Court of Appeal

• Article 140 –Court has the power to inspect and examine the records of any court of
first instance, tribunal or other institution.
• It can issue writs of certiorari, prohibition, precendendo, mandamus and qua warrants
against;
• The judge of any institution
• Any other person
• Article 141 –Court of appeal can issue orders in the nature of writs of heabeas corpus
to;

• Bring up before such court;

Any person to be delath with according to law
Any person illegally detained in public or private custody
• Discharge or remand any person so brought up.
• Court of Appeal can require;
-A person to be brought up before the most convenient court of first instance.
And
-The judge of that court to;
§ inquire into and report upon the acts of the alleged imprisonment.
§ Make orders for the interim custody
-Court of Appeal can deal with certain matters in regard to the custody and control of
minor Children.
• Article 142 –Court of Appeal can direct any prisoner detained in any prison;
§ To be brought before a court martial
§ To be removed from custody to another
• Article 143 –Court of Appeal has the power to grand injunctions to prevent any
irredeemable mischief.
• Article 144 –Court of Appeal has the power to try election petitions in respect of the
election to the membership of parliament.
• Sixth Amendment to the Constitution-Conditioned that;
• Court of appeal can;
- Hear trials of persons charged with violations of the territorial integrity of Sri
Lanka
-Impose Punishment on them upon conviction.

The Provincial High Court
• Article 154P(1) –Created the Provincial High Court.
• Article 154P(2) –The chief Justice can Nominate from among judges of the high court
of Sri Lanka such number of judges as may be necessary to each Provincial High
Court
§ Every such judge may be transferable by the chief justice.
• Article 154P(3) –Every Provincial High Court can exercise;
§ The original criminal jurisdiction of the high court of Sri Lanka in respect of offences
committed within the province.
§ Appellate jurisdiction in respect of convictions and sentences imposed by

magistrates Courts and primary Courts within the Province.
§ Such other jurisdictions and powers as parliament may provide.
• Article 154P(4) –Provincial High Court has jurisdiction to issue orders in the nature
of;
• Writ Jurisdiction
o Habeus Corpus in respect of persons illegally detained within the province.
o Writs of Certiorari, prohibition, precedendo, mandamus and qua narrantoagainst
any persons exercising power under;
§ Any law
§ Any statute made by the provincial high Court for that province in respect of
any matter set out in the provincial list.
• Article 154P(5) –Judicial Service Commission can delegate can delegate to the
Provincial High Court the power to inspect and report on the administration of any
court of first instance within the province.
• Section 3 of Act no.19 of 1990 –States that; “A provincial High Court can exercise
appellate jurisdiction in respect of orders made by a labor tribunal within the
province.
• High Court of Provinces (Special Provisions) Act 1996 –Sets out that; A provincial
High Court has the power to hear and determine, Commercial transaction, in which
the amount exceeds 5million rupees (5,000,000LKR).
o Section 5A(1) of the act stipulates that; a provincial High court has appellate
jurisdiction in respect of judgements, decrees and order of any District Court
or Family Court.

7. ALTERNATIVE DISPUTE RESOLUTION

Introduction
ADR refers to all processes available for the resolution of disputes other than adjudicatory
processes.
Thus apart from court structure there are a number of other bodies and tribunals engaged in
dispute resolution which thereby ease the workload of the formal courts.
Main objective of ADR is to settle disputes with less cost, unnecessary delay and in a friendly
atmosphere.
Types of ADR processes

There are 5 types of ADR processes
1. Arbitration
Ø Arbitration Act 1995
Ø Provides for a regime that recognizes party autonomy devoid of court intervention
this was a
response to the need for expeditious resolution of commercial disputes
2. The Human Rights Commission

Ø Human Rights Commission Act 1996 - created HRC
Ø Promotes and protects Human Rights
Ø Function is to inquire into complaints of infringement or imminent infringement of
Fundamental Rights
3.Labour Tribunals
Ø Industrial Disputes Act 1950 – created Labour Tribunals
Ø Aim at resolution of labour disputes
Ø Hear applications by employees
Ø Commissioner of Labour holds inquiries into industrial disputes aiming to induce
parties to come to amicable settlement.
Ø Minister of Labour may also refer minor industrial disputes to arbitration.
4. National Council for Elders

Ø The Protection of the Rights of elders Act 2000- this established the National Council
for Elders
Ø Function of council is to protect and promote welfare of elders in SL.
Ø Assists elders to live with self respect, independence and dignity.
Ø Council has power to make a maintenance order for maintenance of elders.
5. Mediation
Ø The Mediation Boards Act no 72 of 1988
Ø The Act establishes Mediation Boards
Ø Exclude legal representation altogether
Ø A large number of disputes handled by the boards relate to community issues.

8. RECEPTION OF ENGLISH LAW
Influence of English law in SL isn’t as far reaching as in some other British colonies.
In SL, English law relating to certain aspects was selectively incorporated because of the
existence of Roman Dutch law and systems of communal personal law.
By Statutes
Legislative incorporation of English law has been affected in six ways;
1. Copy of statute enactment

Sometimes a statute passed by the UK Parliament was copied and enacted as law by
the local legislature. Eg Sale of Goods Ordinance 1896.
2. Codification of English case law principles

English case law principles were codified and adopted by the local legislature. Eg
Penal Code 1883.
Such enactments reproduced principles developed by English courts with slight
modifications.
3. Interpretation of English law by reference

Sometimes the local legislature extended the English law on a particular subject to the island.
Laws of England Ordinace 1852 –The law of England is to be observed in respect of;
Maritime matters
All Contracts
Question Relating to Bills of Exchange, cheques and promissory notes.
These enactments contained no statement of the substance of the law.
They directly incorporated the laws in force in England by reference.
4. Casus Omissus in a Local Statute.

Section 58(2) of the Sale of Goods Ordinance 1896 – Conditions that;
English Law should be applied on matters relating to sale of goods where the ordinance is
not complete.
Here English law applied directly and English decisions are binding.
5. Extension of Acts of the United Kingdom Parliament before 1948

Certain acts of the United Kingdom Parliament extended to British Colonies
As a result they become part of the law of Ceylon during the British period
Eg; Law relating to copyright
The law relating to copyright has now been included in the intellectual property act of 1979.
This English Law ceased to be law after 1979.
6. Assumption of British Sovereignty

As a consequence of the assumption of British Sovereignty;
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.
English Rules on these matters became part of the law of Sri Lanka. Superseding the Roman
Dutch Law.
However, the Republican Constitution of 1972 severed the connection which Sri lanka had
with the Crown in England.

By Judicial Activism
Samed v. Segutamby– According to the Proclamation 1799 the Roman-Dutch law is still in
force if not repealed by the local legislature.
Nevertheless English principles formed the basis of judicial decisions.
The amalgamation of English and Roman-Dutch law enriched the legal system.
Reasons for the adoption of English Principles

1. The early judges and lawyers were British
2. They tended to think in British ways
3. They found it easy to refer to principles and case law with which they were familiar.
4. The main source of Dutch law were the treaties written in Dutch or Latin
5. In the 19th century good translations were few and not readily available.
The judiciary attempted to justify their resort to English Law in many ways.
• Roman-Dutch law does not provide for situation which confronts the courts.
• The rules peculiar to the conditions of life in Holland are not a part of the law
of Sri Lanka.
• Roman-Dutch law is similar to English law.
These tests were merely excuses for ignoring one system and resorting to another.
Thus sometimes the Roman Dutch law was ignored even where;
It did provide for the situation which confronted the court
The rules were not peculiar to Holland.
Roman-Dutch Law was not similar to English Law.
Fernando v. Batsian
There are other methods of judicial incorporation which are more arbitrary.
Held; A Roman-Dutch rule relied upon by a litigant must be applied by the courts during the
Dutch period.
Since the records were in Dutch language this was virtually impossible to prove. In practice
this gave the court unfettered discretion to reject any Roman Dutch-Law and apply English
principles instead.
· Silva v. Balasuriya
English Law has been applied because the Roman-Dutch law was obsolete.
Held; when the dutch law is inconsistent with the established practice of the colony Roman-
dutch law regarded as abrogated by disuse.
A law could be abrogated by contrary customs or by continuous acts of disobedience to law.
Extent of the Reception of English Law

English principles have been incorporated to the exclusion of all other laws with respect the
the criminal law, the law of evidence etc.
However, law of persons, property and succession is fundamentally Roman-Dutch law.
The Prescription Ordiannce 1871 is similar to the English Limitations Act.
It relates to the acquisition of title to land by adverse possession.
But English cases interpreting adverse possession were not cited by the local courts.
Instead courts have referred to Roman-Dutch concept of Ul-Dominus.

Jayawickrama v. Amarasuriya
An attempt to judicially incorporate English Rules relating to consideration was halted.
Held; The English Concept of Consideration was not part of the law of Sri Lanka.
Exception;
The concept of consideration has been introduced in special situations by statute.
Thus consideration is required in contracts which are governed by the Sale of Goods
Ordinance 1896.
Roman-Dutch Law ignored
1. The Roman-Dutch Law does not provide for the situations which confront the courts;
De Zilva v. Cassim.
2. The rules peculiar to the Conditions of life in Holland are not part of the Law of Sri Lanka;
Ramasamy v. Wright
3. The roman Dutch Law is similar to English Law

Ramasamy v. Wright
4. The roman Dutch law should be adapted to suit the circumstances of modern life by
reference of English Authorities
Noordeen v Badourdeen
Dr. Corray is of the view the above tests were often not carefully and seriously considered
and applied and served merely as an excuse for ignoring one system and resorting to another
system.

Different Reasons given by the judges for application of English Law principles in deciding
cases.
1. Openly rejecting Roman Dutch Law

2. Applying English Law without reason
3. Assuming English Law to govern a dispute
4. Similarity between English Law and Roman-Dutch law
5. There should be a positive evidence (Positive evidence to prove that roman-dutch law has
been accepted in the island)
6. Roman Dutch law was obsolete
7. Undeveloped quality of roman Dutch law
8. Courts have a right to modify roman Dutch law
Reception of English Law

One of the important Characteristics in the British Policy regarding administration of their
Colonies was that they did not introduce English Law by replacing their law with the existing
laws such as Roman Dutch law and personal law.
This was because they had certain fundamental principles regarding administration of
Colonies.
Campbell v. Hall –Laid down certain principles regarding administration of justice in

colonies.
1. Existing laws in a colony that was conquered or ceded should be continued without
disruption.
2. These laws were to be applied to respective persons and property within the colony.
3. If the Laws of the colony were primitive or a colony was not populated, then the Englishman
would carry with them the English law to the Colony in which they settle.
4. The English Law that was brought into the colony in this way was applicable to the situation
and conditions of the colony.
The early statutes enacted refelected these Colonial law principles laid down in the above
case.
Eg: -The Proclamation of 1799
The Proclamation of 1815 -Ensure the continuation of the existing law.
Similarly other statutes promulgated by the British Administration in Sri Lanka such as the
Charter of Justice 1801 and 1803 and the Ordiance of 1835 too reflected the approach in
Cambell v Hall.

9. THESAWALAMAI LAW
Thesawalamai law is a system of law applicable to the tamil inhabitants of Jaffna, a translation
would mean “The customs of the land”.
• Migration of Tamils from south India. (From the time of ancient Kings)
o Majority came from the Malabar District of india.
o Others came from Chola and Pandyan
o The mixture of these customs constituted the Thesawalamai law of Sri
Lanka.
o The customs and usages of the Malabar were derived from Muruhakattayam
law –which constitutes the main basis and ground of the Thesawalamai law.
• The Portuguese
o Applied thesawalamai law without attempting to codify it.
• Dutch
o The commander (2wardacoon) emphasized the necessity of codifying the
Thesawalamai.
§ Reason; The Dutch found it difficult to ascertain the principles in this
system
o Governor Simons in 1706 made a code by “collecting and codifying” The
Jaffnapatamancient customs and rules.
o The Original codification was made in Dutch.
o Translated to Tamil by Jan Pirus.
o Applied in resolving civil disputesfrom 1707-1806
• The British Period

o Proclamation of 1799
§ The application of Thesawalamai law continued during the British
period in view of the guarantee provided by this proclamation.
o Regulation No.18 of 1806 – Clauses (6) and (7) state;
§ “All questions between Malabar inhabitants of the said province or
where in a Malabar inhabitant is defendant shall be decided according
to the said customs
• Sir Alexander Johnstone translated the Thesawalami Code and codified it, into
English which appeared in the legislative enactment.
• English translation contained certain inaccuracies in Thesawalami law.
• Judicial Interpretation of the Code.

o Sabapathi v. Sivaprakasam.
o There was a controversy as to which copy i.e. Whether the Dutch original or
English translation was to be followed.
o Held; English Translation should prevail.
o Chetty v. Chetty
o Chetty v. ArunasalamChetty.
o The code applies to the category of persons called “Malabar inhabitants” of
the province of Jaffna, this phrase gave rise to arguments.
• Judicial Interpretation of the term “inhabitancy in the Northern Province”

o The courts have consistently held, the thesawalamai law applied not only to
tamil inhabitants of Jaffna in 1806 and to their descendants but also to any
Tamils who came and settled down and acquired inhabitation in Jaffna.
o The sole criteria that would be deciding whether a person is governed by
Thesawalami Law or not is whether the Particular tamil person had acquired
an inhabitation in the northern province.
o TharamalingamChetty v. ArunasalamChettiar
§ Held; that a person whose father had come from Ramnad in South
India after 1806 and settled down in Jaffna was governed by
Thesawalamai law.
o King v. Perumal
§ Held; Native of South India living in central Province was not
governed by Thesawalamai because he was not an inhabitant of the
Northern Province.
o S/C emphasized, that in order to be governed by Thesawalamai, a tamil must
have acquired domicile in Ceylon in addition to the inhabitancy in Jafnna
when it said that Thesawalami applies to Tamils with a Ceylon domicile and
Jaffna inhabitancy.
o Spencer v. Rajaratnam
§ Naganathan was the son of tamil parents who were inhabitants of
Jaffna. Naganathan left Jaffna when he was an infant and lived and
died in Colombo. He married a Colombo Tamil lady who had been
living in Colombo. He had visited jaffna four times before he died,
intestate. The court had to decide if he was governed by Thsawalami
or general law.
§ Held; The fact of birth or descent as a tamil inhabitant of Jaffna was
sufficient toprove that a person is governed by Thesawalamai law.
o Savunderanayagam v Sounderanayagam
§ One savu, was born in Jaffna, hus father was a Colombo Chetty who
had lived in Jaffna, but savu who was a lawyer had practiced in
Trinclonoply in South india.
§ Held; He was not by thesawalamai because there was no sufficient
evidence available to prove that save himself was an inhabitant of the
Northern Province.
o All the above cases took the position that the evidence of the person’s family
history and his birth in Jaffna was not adequate to prove inhabitancy and the
persons concerned should have acquired inhabitancy.
• Velupillai v. Sukamipillai
o The word “Inhabitancy” applies to a person who had acquired a permanent
residence in the nature of domicile in Jaffna.
• These cases prove that the relevant person should have acquired a permanent
inhabitancy in the province of Jaffna.
• If he had maintained a permanent home in Jaffna and gave it up at a later stage, it
points to the fact that he has given up inhabitancy in Jaffna and hence is not
governed by Thesavalamai.
But;
• If a person who had a permanent residence in the northern provision lived outside
that province for the purposes of business or employment, the courts have decided
that he has not given up his permanent inhabitance in Jaffna.

o If there is evidence to show that he maintained continuously his permanent

residence in Jaffna.
o Sivagananalingam v. Sunetheralingam
o A Jaffna man went to Colombo for studies and worked. He married a Tamil
lady in Jaffna. During the 20 years of his married life with his wife he lived in
Colombo and used to go and stay during vacation in the house in Jaffna,
which was a dowry property of his wife. Though he married another woman
after his 1st wife’s death, he continually maintained his relationship with
Jaffna.
o Held; No intention of abandoning the original Jaffna inhabitancy, the
deceased never ceased to be a Jaffna inhabitant.
• Regional basis of Thesawalamai.
Marisal v. Savari
• Held; That the Thesawalami law applied to Tamils living in the manner district.
Wellapulla v. Sitambelem
• Held; Thesavalamai law is applicable to tamils living outside the Northern province
of Ceylon. Thesawalami law did not apply to Tamils in Batticalo and Trincomalee
districts.
Fernando v. Proctor
• Held; Tamil Woman descended from Jaffna and a resident of puttlam district was
not governed by the Thesavalamai law, on the basis that she had not permanently
resided in the Northern Province.
• Tesawalamai Code
• Specifically stated that it would apply only to Tamils in the province of Jaffna.
• It did not apply outside the Northern Province and that it did not apply to persons
living outside the Northern Province.
• Tamils outside the Northern Province were governed by General Law.
Thesawalamai as a Personal Law
• The best definition of Thesawalamai is that it is a personal law with a territorial basis
• Tamil person governed by Thesawalami can change his personal law by shifting his
permanent residence from Northern Province to another province.
• When Thesawalami applies to a tamil person residing in the Norther Province, as a
personal law. Its Principles govern inheritance, succession and matrimonial property
rights of spouses irrespective of whether property of that person is situated in the
northern property or any other province.
§ Eg. If a person subject to Thesawalami owns property situated in Colombo or
Baticaloa. The right of succession to this property and the matrimonial rights
of spouses should be determined according to Thesawalamai.
• Seelachy v. VisunathanChetty
§ A father who was subject to thesawalamai had been doing his
business in Colombo. Though he stayed in Colombo for business
purposes his permanent residence was in jaffna where his wife and

children lived. The father had purchased a property in Colombo and

later donated it to his son. After the father died leaving all his
property to his wife by a last will.
§ Son mortgaged the property donated to him by his late father and
later his property was sold in execution.
§ The property was purchased by the Defendant.
§ The Widow of the father filed action claiming her right to half of the
property on the ground that it was part of the diathettamand that
therefore it was not competent for her late husband to donate more
than half without consent of his wife (the plaintiff).
§ Court did not accept the argument;
§ But recognized that principles of Thesawalamai on intestate
succession applied to properties owned by the persons governed by it
situated outside the Northern Province.
• Sivagnanalingam v. Sunetheralingan
§ Thesawalami is the personal law of the Tamil inhabitants of the
Northern Province. It applies to them wherever they are and to their
movable and immovable property, wherever situated in Sri Lanka.
• Manikkarasagar v. Kandasamy
§ Tamil Person Governed by Thesawalamai died intestate. He owned a
house and a car in Colombo.
§ Court applied principles of Thesawalami to determine the intestate
succession rights of the heirs or to whom the property devolved.
Thesawalamai as a territorial Law

• This principle is that certain rules of Thesawalamai apply as a territorial law to all
property situated within the Northern Province, irrespective of it being owned by a
muslim, tamilsinhaleese or any other person.
• This means that if an immovable property situated in the Northern Province is
owned by a person governed by Thesawalamai or any other law such as Kandyan
law or general law. Certain principles of Thesawalamai to this property as a
territorial law just because they are situated within the Northern Province.
• Seelatchy v. VisunathanChetty
• For Certain Purposes the Thesawalamai law applied to all immovable property
within the Northern Province.
• One such right is the Right of Pre-emption.
§ Thambiah defines the right of pre-emption as “the right recognized by
thesavalamai law over immovable property situated in the Northern
Province of Ceylon by which certain classes of persons had the right
to demand the seller to sell to them at a price which only a bona fide
purchaser is prepared to pay for the same, therefore co-owners, co-
heirs and adjacent land owner had a right to demand that an owner
who wished to sell his property makes the 1st offer sale to them at a
competitive price”.
§ This right of pre-emption applied to all land within the Northern
Province. If a land owner sells his land to an outsider violating the
pre-emption rights of Co-owner, co-heirs and adjacent land owners,
they could get the sale invalidated by filling an action in the courts.

§ Suppiah v. Thambiah
§ “Thesawalamai imposes a restriction on the sale of land in the

province of Jaffna, which would affect the rights of any person who
assumed to buy it, whether he be English, Moor or Jaffna Tamil not a
resident in the province.
• These rules on pre-emption in Thesvalamai apply to all lands situated in the
Northern Province irrespective of the person who owns it.
• When a Sinhalese who owns a piece of land in Jaffna wishes to sell it, he or she
should make the 1st offer to the co-owner, co-heirs and adjacent land owners before
he or she sells the land to any person.
o This indicates that though Thesawalamai does not apply to a person, it may
apply as a territorial law to the land owned by such a person in the Northern
Province.

10. ROMAN LAW

Majistratumedicta Jus Honorarium
The magistrate in Rome had power to make laws in the process of administration of justice.
He announced an act of rules that will apply during his term of office. These orders were
known as Magistrate edicta. He had the power to develop law to meet new developments
and achieve justice.
Jus gentium
• It concerns with the relationship between the romans and foreigners.
• This is the initial stage of international Rome.
Jus Civile
• It is the law peculiar to the state of Rome, thus it is the law applicable to Romans.
• It refers to the law of particular state of Rome.
• In another sense it refers to the law of Rome, applicable to Roman citizens only.
• Sometimes it also refers to a part of the law based on ancient Roman customs and
statutes particularly The XII Tables.
• In a general sense it’s the law at least originally applicable in Rome to the Roman
Citizens
Jus gentum
• It also has its own different meanings but generally is;
• It’s the law with Universal application and used among all civilized nations or people.
• It was originally applicable to govern the relationship between Roman Citizens and
foreigners.
• Later it was made applicable for Roman citizens.
• As a set of principles that govern the commercial transactions between the roman
citizens and foreigners.
• jusgentumdeveloped into a massive body of law superseding jus civileand became
applicable to both Romans and foreigners.
Status of a Slave
Legal status;
• The slave did not have legal status.
• The slave belonged to the master.
• The slave could be tortured and killed at the discretion of the master
• · However; a slave becomes a free man upon emancipation (liberation) and enjoy status of
a free man.
Property rights;
• The slave could not acquire property
• If he acquires property the masters could own such property.
• However the master could not allow him to keep some property.
• Commercial and Other (matrimonial) Rights;
• The slave could lend money but the mast becomes the creditor.
• The slave cannot enter into any agreements .
• The master could however enforce an agreement of the slave.
• The marriages between slaves were not permitted.

• Slaves were considered as property belonging to the owner. The slave did not have
any rights whatsoever –life, property and social status of a slave acquires property
only in the name of the principle or master.
Patria Potestas
• Patria Potestasis the power exercised by the head of the family over members of that
family.
• Pater familia–is the eldest living male of the family.
• Pater familiahad absolute powers including;
• The right to inflict death over his subjects
• The power over the marriage of members of the family
• The right to sell the child for slavery
• The child did not have any rights to acquire property
• What he acquired belonged to the pater familia
• The child could not enter into contracts.
• Any benefit derived by a contract of the child were acquired by the pater familia.
Creation of Patria Potestas

• Patria Potestasis created by;
• Birth; a child born to a citizen, is a subject to the patria potestasor the childs father.
• Marriage/Legitimization; upon marriage, the wife terminates the relationship with her
family and come under the family of the husband.
Adoption; in forms
Adrogation
Adoption
Termination of Atria Potestas;

By death of ‘pater familia’
By change of status –where the father or child becomes the slave.

Contractual Obligations
A contract means any agreement which can be enforced by law.
There are 6 elements of a contract
1. The contemplation of the creation of legal relations

2. The objective of the contract must be legal
3. The parties must act freely
4. The required formalities must be followed
5. There must be Consensus ad idem
6. The parties must have legal capacity to enter inter commercial transactions.
Contracts made res??

There are four types of contracts made res;
1. Mutuum;
The means a loan of movable goods for consumption
The borrower must exercise care over the property and return it as it was.
2. Commadatum;
This is a loan of Tangible things for some special use.
The borrower must exercise care over the property and return it as it was.
3. Depositum
This occurs when a person entrusts some property to another person for safe custody.
The receiver must return it upon request.
4. Pignus
This means the guarantee that is kept to make sure that a loan is paid back
Guardianship
Stages of childhood under Roman Law.

1. Tutor (TutelaImpuberum)
• Those who are not under the Pater Familia(Suijurists) are subject to the authority of a
tutor, as the child does not have legal capacity.
• This is a guardianship of young persons until puberty.
• The minor does not have legal capacity.
• The authorization of the tutor for any transactions can fill the gap of not having the
legal status.
• Creation of a tutor/ Different types of Tutors;
a) The tutor can be appointed by last will upon the death of Pater Familia.
b) When a father dies, the brothers of the child become the tutors
c) The tutor can be appointed by declare –Where there is a minor who does not have authority,
any person may apply to the magistrate for appointment of the tutor.

• Functions of Tutor;
o Administration of the property of the minor
o Education of the minor
• (Look after the interest of child including education and property)
• Protection of the minor;

• Methods recognized to ensure the welfare of the minor who is under the protection
of the tutor;
1. The tutor must take an oath to take due care of the minor
2. Their suitability was inquired into
3. He was responsible to payment of damages to any loss caused to the property of the minor.
4. The tutor could be challenged for misconduct.
• Termination of Tutorship
Tutorship came to an end in five ways;
1. Where the minor attends the age of puberty

2. By death of either party
3. Discharge by magistrate.
4. When there is a condition upon which the tutor is appointed, the fulfillment of that
condition
5. Change of status of either party.
2. Curator (Cura)
• All children under the age of 25 required a curator.
• The functions of the curator was to administer the property of the Child.
o Thus he had no control over the body of the minor
• The curator should grant his approval to transactions of a reasonable nature that the
minor wanted to undertake.
• The institution of Curawas intended to look after the interest of the persons who have
reached the age of puberty.
• Children under this would be, children below the age of 25, persons of unsound
mind and spend thrift (Prodiyan)
• The curator is required to look after the interest of the person under him.
In Tutor –Tutorship terminates when the minor reaches puberty.

In Cura – The protection goes till age 25 (beyond puberty).

Law of Property.
Roman law of property deals mainly with res (Res=things or property).
• Classification of Res (Property)

o Res Corporal –Physical or tangible.
o Res Incoporals–Non-physical or intangible things.
o Classification of Gaius (jurist)

§ Gaius divided property in two 2 more classes;
Humanaijuris –
• These are the things which ownership is vested in human
beings.
• HumaniJuriswas divided into two classes.
o Res manacipi– Things that can be transferes only by

mode of transfer of property called monocipation -
Things such as houses and land in Italy and–Animals
also)
o Res necMancipi–This includes Res that can be
transferred by the mode of transfer of the property
other than monocipation -Property outside Italy
DiviniJuris –
• These are things in divine ownership
o Things dedicated to Gods
o Things consecrated to Gods
o Things under protection.
• Res Mobiles -Movable things.
• Res Immobiles–Immovable things.
• Justinian’s Classification;
§ Things vested in private ownership.
§ Things open to anybody such as a harbor
§ Corporal and incorporeal property
§ Things in divine ownership.
Modes of Acquisition of ownership
• The Romans recognized 3 types of acquiring ownership to res

§ Original
§ Derivative
§ Prescriptive
• Cessio in jure –This means a transfer completed before the court.
• Donatio–Donation takes two forms;
§ Donation inter-vivos –A gift between two living persons (cannot
generally be canceled unless the done shows ungratefulness)
§ Donatio Mortis Causa- a gift of personal property made by someone
who expects to die in the immediate future, taking full effect only after
the donor dies.

• Prescriptive Acquisition –The ownership of property can be acquired by a person

who has possessed the property for a certain length of time.
• This mode of acquisition of property is known as usucapio.
• The required period of enjoyment was;
o Two years –Movable property.
o One year –Immovable property.
• Usucapio Requirements
o The property must be actually possessed
o The possessor must have capacity to enter into a commercial transaction.
o The possessor can act on his predecessor
o The possession must be uninterrupted. (The possessor has commenced
possession)
o The thing must be subject to usucapio–some things are not subject to
usucapioEg. Things which belonged to the emperor.
o The possession must be bona fide.
o The possession must continue for the entire period of time without
interruption.
Law of Succession
Succession - inheritance to rights of the deceased.

It is of 2 types-
• Intestate succession
• Testate succession
Intestate succession
Where the property is devolved according to the rules governing the devolution of property
on death , in the absence of a valid will. This was derived from the following sources; The
Twelve Tablets, The Praetors Edict , Imperial legislation before Justinian’s Novel 118 ,
Justinian’s Novels.
Testate succession
Inheritance to the rights of the deceased through a testament (will)
Creation of a will
• A valid will ab initio and it must be valid until the heir “enters” upon the inheritance
• The heir must duly enter
Valid will-
Ø The will must be in a proper form
Ø An heir or heirs must be duly instituted
Ø The testator, heir and witnesses must have testamentary capacity
Ø Certain persons must be either instituted or disinherited
In order to prevent property devolving on intestacy because of the failure to institute the heir
a legal device called Substitution of heirs was brought forward.
Substitution of heirs

I. Vulgar substitution-In order to prevent the property being

devolved on to intestate heirs when the sole heir does not
accept the inheritance this mechanism was created whereby
the testators after instituting heirs substituted others to
succeed in any event the first heirs does not take the property.
II. Pupillary substitution-Where head of the family appointed a
child in his power as heir and providing a substitute.
Capacity to make a will

A Roman citizen who was not in the power of another and thus over the puberty could make
a will.
But infants, lunatics, prodigals, deaf or dumb or blind persons, captives(during captivity ) ,
women ( after the time of Hadrian and unless they obtain consent from their tutors) could not
make wills.
Law of Delict.
• Delictual obligations were intended to provide relief for wrong inflicted upon the
property or reputation of a person.
• Roman Law recognized two main delicts;
1. Injuria;
o The word injuria denotes an insulting act which injures the dignity of a
freeman.
o It violates freeman’s right to his safety and reputation.
Eg; A assaults B without a just cause.
• Remedy;
o The XII Tables recognized compensation as the remedy.
o But the magistrate introduced an action called Actio Injurium.
§ The romans recognised different remedies against injuria from time to
time.
§ Eg. The XII Tables recognize compensation as a remedy retaliation
was permitted where the parties could not agree upon the amount of
compensation. The XII Tables recognized certain specific amounts of
compensation. Later magistrates introduced an advance remedy
known as Actio-injuriarum.
• There are 6 elements of Actio Injurium;
1. The action must be brought within a period of one year.
2. There should be an absence of self-defence on the part of the Defendant
3. The amount of damages is estimated by the plaintiff
o If the estimate is unreasonable the magistrate can modify the quantum of
damages.
4. The plaintiff or some other person may bring the action, for example pater familia can
bring the action on behalf of his son. (When more than one person is effected they all can
bring separate action. Eg. The son is defamed –both the pater famila and son are affected and
can thus bring action).
5. The affected party must show immediate resentment.
6. The liability can be transferred to the heirs of the defendant.
• Aggravated Insult;

o The quantum of damages could be increased where the insult committed by

the defendant is aggravated.
o There are four such circumstances an act may become an aggravated insult;
1. The rank of the injured person –ie. A senator
2. Nature of the Act –ie. Beating
3. Nature of the place the insult is commited –ie. Public place with spectators
4. The special vulnerability on the part of the body injured;
§ Damnum injuira datum
2. Damnum Injuria Datum

• This involves a wrongful damage to property and thereby causing a financial loss;
o The violation of the property right of a freeman by causing damage to the
property.
• There are 3 requirements for liability;
1. There must be an act
2. The act must be wrong
3. There must be a financial loss
• The Act;
o The act must be a positive act
o Omission does not necessarily result in liability.
o However an omission committed with a prior assumption of liability on the
part of the defendant (eg. A doctor who abandons a slave after a surgery is
liable because he is required to treat the patient after surgery.)
• The act must be wrongful;
o The act becomes wrongful where it is committed intentionally to cause
damages.
o The defendant acts negligently when he fails to observe the duty of care.
o Negligence is where every person is required to in every action exercise due
care not to harm or to cause any harm to any person.
• Financial Damage;
o Defendant’s wrongful act must cause damage to property of the Plaintiff,
resulting in financial loss.
• Award of Damages;
o Damages were awarded to the direct losses caused by the wrongful act –
actual value for the property.
o P can obtain as compensation the gain he might have acquired.
o The losses caused due to special circumstances.
The magistrates introduced certain improvements to the aquilian action;

• Originally only the master or the real owner of the property could being action.
o This was extended to two other parties, namely pledges, bona fide possesses.
• The acquillian action originally recognized only the direct damage caused to the
property.
o Expanded the scope of action even to cover the instances where the damage is the
direct consequence of the act even though no direct contract has taken place.
• Originally the damage was calculated based on the actual value of the object.
o Two norms have been introduced;
§ Addition of the gain which might have occurred.
§ The plaintiff can claim losses resulted from special circumstances.

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LEGAL HISTORY

Reviews, responses and criticism

Educational Affairs Committee

Social & Welfare Secretary

Asst. Education Secretary

Asst. Sports Secretary

Unofficial Committee Member, Male

Unofficial Committee Member, Female

2. Legal systems of Ceylon………….……………………………………………... 7

3. Pre Colonial Period……..…………………………………….………..………… 11

4. Administration of Justice under the Dutch…………………………………… 13

5. Courts of First Instance………………………….………………………………. 15

7. Alternative Dispute Resolution…….……………………….………………….. 21

8. Reception of English Law…..……………………….……………………………22

9. Tesawalamai Law…………………………….………………………………….. .26

10. Roman Law…….……………………….………………………………………….31

Law Students’ Union of Sri Lanka

01) Legislation as a Source of Law

Legislation or Statutes applicable to Sri Lanka are five fold. Namely;

(2) Prerogative Instruments Issued by the Sovereign of UK

Law Students’ Union of Sri Lanka 1

(3) Statutory Instruments

This instrument empowered the Privy Council to either;

(4) Local Legislation

Mainly, 03 types of local legislations.

iii) Parliament of Independent Ceylon passed Acts 1947 – 1972

(5) Delegated Legislation

i) Ministers and respective officials of government departments issue Rules,

Publication of Statutes and Delegated Legislation

• Acts of the UK Parliament, Prerogative instruments issued by the Sovereign of UK,

Law Students’ Union of Sri Lanka 2

Nomenclature for Statutes

1796 – 1930 Charters, Letters of Patents, Orders in Council

1931 – 1948 Ordinances under State Council & Legislative Council

1948 - 1972 Acts of Parliament

1972 – 1977 Laws of National State Assembly

1978 – To date Acts of Parliament

02) Judicial Precedent as a Source of Law

A) Doctrine of Binding Precedent (DBP)

• Can be defined as the decision of a previous/superior court that binds a future/lower

01) Ratio Decidendi:

Law Students’ Union of Sri Lanka 3

Queen V Lathem (1901) AC 495

02) Obiter Dicta:

“An incidental remark”

(i) When a court cuts down the expressed ratio

Example: Carlill V Carbolic Smoke Ball Company (1893) 2 QB 256

• A device to free up from the rigour of judicial precedent.

• This enables law to develop (dynamic) and not allowing it to be static or

Circumstances for overruling are,

Law Students’ Union of Sri Lanka 4

05) Refusal to follow:

• This device is used to courts of coordinate jurisdiction. (Example: Court of

B) Circumstances Destroying Binding Precedent

• Exceptions to the doctrine of stare decisis

(i) Abrogated decisions:

If the statute on which the judicial authority is based is repealed or amended

(ii) Per incuriam:

Can occur in following ways;

• If rendered in ignorance of a statute but not on a wrong or mistaken

• If rendered in ignorance or forgetfulness of a case authority

• This ignorance must go to the Ratio of the authoritative judgment

(iii) Precedents Sub Silentio

Law Students’ Union of Sri Lanka 5

Legal History & Legal Systems of Sri Lanka

Legal History & Legal Systems of Sri Lanka