Sri Lanka has a very long history. According to the Mahavamsa, Sinhalese are descendants of the Prince Vijaya and his seven hundred followers. They landed on the west coast of the island around 5th century BC. Even when they arrive in Sri Lanka, some kind of civilized population lived in the country. Kuweni, the Yaksha princess who married Vijaya afterward, was weaving some clothes when they first met. They were Yaksha devotees. In other words, these facts establishes that there was some form of civilized society.
In a somewhat civilized society, surely there should have been some form of administration of civil and judicial matters. We do not have written confirmations about the legal systems that prevailed during those days. But, we have evidence to prove that the kings who ruled afterward maintained law and order. Also, they have followed some forms of hierarchical judicial systems.
The Pre-colonial Period
Some literature has mentioned elements of judicial systems in early Ceylonese history. During the time of Queen Kalyanawathi (1202 – 1208), a military commander named Ayasmantha compiled a book on law. Kamalika Pieris says that inscriptions such as Aturupolaya Gama pillar inscription and Kondavattavan inscription of King Dappula IV., Timbirivava pillar inscription of King Kassapa IV, Kirigallava inscription of King Udaya II and Vevalketiya inscription of King Mahinda IV speak of prohibited behavior and the punishments attached to them. For example, the Kondavattavan inscription has ten taboos such as දියපත්තායම් තහංචිය, භූදිය තහාංචිය, මඩකලූ තහංචිය. Those were for improved water management. It might be the penal code in those periods.
In the keynote address by High Court Judge R.T. Vigna Raja, at an orientation program to the law students cited Dr. A.R.B. Amarasingha’s “The Legal Heritage of Sri Lanka” and said, “Ceylonese monarch followed an elaborate system of administration of justice spreading to different levels of hearings”.
Judicial power of the king
The King had original jurisdiction. And at judgment hearing, even in simple cases, sometimes the king himself participated. Often the kings’ judicial authority was delegated to some officials. Those officials exercised these delegated judicial authorities. However, the king himself heard disputes involving the members of the royal family or high dignitaries of the state. The king alone could impose a sentence of death.
In exercising the judicial powers the king consulted his chiefs and obtained their opinion. For instance, in early days Rajasabha or the king’s court and during the Kandyan period Maha Naduwa advised the king on the highest judicial matters. This court consisted of the Adikaramas, Disavas, Lekams, and Muhandirums who were distinguished for their ability and judgment. Gamsabhava was the lowest court and probably the earliest tribunal in the judicial hierarchy of the Sinhalese. However, no record gives an account of the judges of this court or of the legal proceedings.
Ratasabha composed of a delegation from each village in a Korale or Pattu was another court. The delegates were from the principal citizens and officials such as Mohottalas (Scribes), Liyanarala (Clerks), Badderalas (tax collectors), and Undiralas (collector of royal revenue). These tribunals adjudicated matters affecting caste, marriage, and social status. Thus it is clear that from the very early days of Sri Lankan history, a hierarchy of courts from village level Gamsabhava through district level Ratasabhava to Mahanaduwa existed on the island.
When island was not under one king
In history, there were only a few occasions that the island was under one king. Most of the time, there were several kingdoms in early Sri Lanka. Those kings and princes who ruled separate kingdoms governed more or less independently. Most of the Sinhala kings ruled north central, southern, and central regions. After the fall of the Anuradhapura kingdom, there were some Chola and Tamil rulers in the northern territory of Sri Lanka. And there were Arab traders all over the country doing their businesses. As a result, several indigenous laws were practiced in several parts of Ceylon. But most of these were not in written form. These continued through an oral tradition.
Laws prevailed in the country
When the first European power, the Portuguese, came to the island, there were several laws that prevailed in the country. The majority Sinhalese who occupied the interior, southern and western areas of the country followed the Sinhalese law, popularly known as Kandyan law. Through a continuous oral tradition has linked these laws to the times of early Sinhala kingdom.
Robert Knox said “There are no laws but the will of the king. Whatsoever proceeds out of his mouth is immutable law. Nevertheless, they have certain usages and customs that do prevail and are observed as laws”. But Hayley’s comment is “The Sinhala law, as enforced in the Kandyan territories in the eighteenth and nineteenth centuries was in no sense a personal law. Originating in the customs of the Sinhalese it had long since become the law of a country administered by the King in respect of all cases alike”.
Other laws prevailed
The Tamils, who lived mostly in northern areas, followed the Law of Tesawalamai. The then Dutch Commander of Jaffna has mentioned the native customs of Jaffna people regarding their dispute settlements. These customs were later codified as “Law of Tesawalamai”. The law of the Muslim community was the Muslim law. This Muslim community was descendants of Muslims who came to the island as traders or who migrated from India. Their Code of Muslim law also codified during the Dutch period. Also, there were other minor systems of laws such as the Law of Mukkuvars, and the system of laws for Chetties, Parsees, and Paravars.
These facts above establish that before colonization, we had laws, customs, and judiciary, which was unique to our country.
The Colonial Period
They came to the island in 1505 AD and settled in the western coastal area with the permission granted by the King Parakramabahu VIII of Kotte (1484-1508). Their original intention was to trade with the Ceylonese and convert people to their religion – Roman Catholicism. But, later realizing the strategic advantage of the situation, they wanted to establish themselves in the country. The Portuguese made no attempt to introduce their law to the coastal areas of Sri Lanka which they controlled and only succeeded in introducing their religion, Roman Catholicism. The Portuguese did not try to alter the existing basic structure of native administration. At the time of the Malwana Convention, they tried to introduce their customs and laws to areas where they ruled. But it was not successful. In 1656 AD the King and the Dutch repulsed the Portuguese.
Hollanders came to the island after the Portuguese. They were on the island from 1656 – 1796 AD. They also could not extend their authority beyond coastal areas. But they successfully introduced their version of Christianity, laws, judicial and administrative system in the coastal areas.
The law of the Dutch
Their law was known as the Roman-Dutch law. Roman-Dutch law was a combination of Roman law and local Dutch law. Laws that legislative authorities established in the Netherlands or laws promulgated in the colonies have applied to colonies. Directorate of the East India Company also could legislate for the colonies. Governor-General of Batavia and Governor of a colony also could promulgate laws. Those are some methods of how Roman-Dutch law has introduced to Ceylon. When applying these laws the Dutch judges must have followed some practice. Nadaraja suggests that judges must have first consulted local statutes, then Batavian statutes, and finally the general law of Holland.
Judicial system of the Dutch
The Dutch had a well organized judicial system. At Colombo, the chief court was the Raad van Justitie. It consisted of members chosen from the Political Council and presided over by the Hoofd Administrateur. It had exclusive criminal jurisdiction and original jurisdiction in civil cases between Europeans and locals in Colombo. Raad van Justitie also heard cases against locals residing in the Fort of Colombo. It was also a court of appeal and exercised jurisdiction in criminal matters.
The next court, Land Raad dealt with litigation touching land disputes among the local people. It also dealt with matters of contract and debt where the amount is less than 120 rix-dollars. The Composition of Land Raad was a Disawa as President, a few members of the Political Service, and local chiefs.
The Civil Raad or Court of Small Causes took cognizance of civil cases under 120 rixdollars in value. It had jurisdiction over Europeans and natives. A similar Raad van Justitie existed at Jaffna and Galle as well as Land Raad. Appeals lay from the Raad van Justitie of Jaffna and Galle and from all minor courts in civil and criminal matters to the Raad van Justitie at Colombo, and in certain eases to the Raad van Justitie at Batavia.
Though the Dutch, in principle, allowed the native laws to be in operation, there were instances that the Dutch authorities denied the legal recognition to the native usages.
The British acquired the maritime provinces of the island in 1796 from Dutch and ceded to the British Sovereignty in 1802.
The fundamental principles regarding the administration of conquered or ceded colony of the British sovereignty was laid down in the judgment of Campbell v Hall (1774). Accordingly, the inhabitants of the colony came under the authority and dominion of sovereignty and became British subjects. Also held that subject to certain exceptions, the laws and the administration of justice in such a country should not be disrupted. And should continue in force unless it became necessary to change the existing system.
The Proclamation of 1799
The first Proclamation of British regarding the administration of the Ceylon “The Proclamation of 1799” states that “the laws and institutions that subsisted under the ancient Government of the United Provinces (of the Dutch) should continue, subject to such deviations and alterations as may be made by the authorities specified, and in the circumstances mentioned in the proclamation”. Accordingly, special laws and residuary general law or common law, namely the Roman-Dutch law of the Netherlands as supplemented by legislation enacted in Batavia and Ceylon and as declared in the decisions of the Ceylon courts where the special laws did not apply, continued to have legal validity. Special laws mean the laws which applied in varying degrees to particular sections of the Asian inhabitants under the rule of the Dutch.
“Charter of Justice” of 1801 did not repeal the Proclamation of 1799. But it contained some provisions regarding the administration of justice in Maritime Provinces. It allowed the application of the English law and the laws of Sinhalese and Moors in regard to certain matters. But the Statute, Ordinance no. 5 of 1835 restored Proclamation of 1799, with some deviations, such that any deviation or alternative was possible only if “ordained by lawful authority.
When the Kandyan provinces were annexed in 1815, the British assured the nobility of clergy and the citizens by the “Convention of 2 March 1815”. Their rights, privileges, and powers of the respective offices, the safety of their persons and property, civil rights and immunities, institutions, and customs in force would be preserved and maintained and that their religion declared immutable. The traditional authorities exercised the administration of criminal justice and police according to established norms. It gave the Government the right to redress grievances and reform abuses in all instances.
However, soon the chiefs, priests, and the people found that they were deceived. The consequences were the uprising in the Kandyan provinces. This took place towards the end of 1817. The British suppressed the uprising with great cruelty and harshness. It provided the much waited and desired opportunity for the British to enforce harsh terms and establish the British hold in the Kandyan provinces on a firm footing by the Proclamation of 21 November 1818. In this background, we have to consider the judicial administration of Ceylon under British rule.
Judicial system of the British
The procedure followed was the practices of English Courts. The judges were strangers to social concepts that prevailed. Therefore the majority of cases had resulted in many deviations and changes in normal procedures.
The rules of proceedings drafted for the conduct of these courts were in accordance with the rules and procedures prevalent in Great Britain. Pleadings were by affidavit. The litigants had to pay certain fees, which varied in amount from time to time.
The Charter of Justice of 1801 empowered the Supreme Court to make necessary rules to enroll properly qualified persons as Advocates and Proctors. The Court also entrusted with the general superintendence and control of these legal practitioners.
The Supreme Court – under the British rule
The Supreme Court of the Island of Sri Lanka was established. And the Crown appointed a Chief Justice for the Supreme Court. The Court in consultation with the Governor appointed a registrar and other officials necessary to run the Court office. The island was divided into District of Colombo and three circuits namely the Northern, Southern and Eastern. There were to be two sessions of the Supreme Court a year in each circuit.
The Supreme Court was vested with the original jurisdiction of major criminal matters throughout the island and appellate jurisdiction of the District Courts. In addition, the Supreme Court was to hold Criminal and Civil Sessions separately on the circuit.
The judicial system – under the British rule
Each judicial circuit was further subdivided into Districts. In each of which a District Court was established with a District Judge. The District Court has the empowerment to adjudicate all civil and limited criminal matters within the judicial district. And District Court also conferred on the testamentary jurisdiction and the adjudication of revenue suits. Appeals were possible from the District Court to the Supreme Court.
Although there was confusion at the beginning, the British were able to build their own judicial apparatus in a short time. Roman-Dutch Law has the preference. However, the customary laws of the locals too were given judicial recognition. Subsequently, the traditional Tamil Laws and the code of Muslim Laws compiled under the Dutch were declared part of the law. But when it came to decision making, it was soon evident that these codified laws were silent in some areas, ambiguous in others, and obsolete in some other areas.
The Post-Independence Period
1948 to 1972
In 1815, with the support of some Kandyan nobles who disliked the King of Kandy, the British captured Kandy. With this, Ceylon came under the rule of British sovereignty. During the later part of their ruling period, they first introduced colonial constitutional governance made through the Colebrooke – Cameron Reforms. The Donoughmore reforms came in 1926. Finally, in 1948 the Soulbury Reforms came and awarded much-anticipated independence.
However, the powers given were subjected to the powers of Her Britannic Majesty as the Head of State of the Dominion of Ceylon. The representative of her Majesty in the Dominion of Ceylon was the Governor-General. His duties declared in Article 4 (2) of the Soulbury Constitution. It says “- exercised as far as may be in accordance with the constitutional conventions applicable to the exercise of similar powers, authorities, and functions in the United Kingdom by her Majesty”.
Accordingly, a Parliamentary System of Government awarded to Sri Lanka. The executive Powers were entrusted to the cabinet headed by the Prime Minister.
The Governor-General appointed the Chief Justice and the judges of the Supreme Court. In addition, a Judicial Service Commission has set up under the Chief Justice. This Commission controlled the affairs of the judges in the judicial system.
1972 to 1978
The First Republican Constitution in 1972 achieved to break away from the Colonial scheme of constitutional governance which had continued into the Period of Independence. Another major change relating to the judiciary was that the removal of the right to appeal to the Privy Council in the United Kingdom. In addition, the Ceremonial President appointed by the Prime Minister replaced the Governor-General, who functioned under the Soulbury Constitution as the constitutional figure representing the Queen of England.
In the 1972 Constitution where it was declared that: “Sri Lanka (Ceylon) is a Free, Sovereign, and Independent Republic (Article 1). There shall be a President of the Republic of Sri Lanka who is the Head of the State (Article 19). The President is the Head of the Executive and the Commander – in – Chief of the Armed forces (Article 20).
1978 to to-date
The first Executive Presidential Constitution which J.R. Jayewardene introduced in 1978 is still in force. To date, this Constitution has undergone a number of amendments to suit the situation of the country and the political environment.
- Consice mahawamsa p110
- EZ vol 1 pp 35 37
- Geiger 1960
- Knox Robert, An historical Relation of Ceylon. (1958) reprint p 161
- Haylet p 25
- CJM Cooray, an introduction to the legal systems of sri lanka, p 3
- Oriental and Occidental Laws in Harmonious Co-existence: The Case of Trusts in Sri Lanka Electronic Journal of Comparative Law, vol. 12.1 (May 2008), http://www.ejcl.org page 2
- Ibid, note 5
- Nadaraja p 9
- Nadaraja T,. cited in Cooray, Legal System p 53
- Anthonisz, R.G., The Dutch in Ceylon; An Account of Their Early Visits to the Island Reprint (2003), Asian Educational Services, Delhi.
- Nadaraja 1968
- Campbell v hall
- Proclamation 1799
- Nadaraja p 181
- De costa v boc
- Skeen vol 1 pp 180 181
- Ibid note 23 pp 223 229
- Wijeyasamaraweera 1981
- Anthonisz, R.G., “The Dutch in Ceylon; An Account of Their Early Visits to the Island”, Reprint (2003), Asian Educational Services, Delhi.
- Cooray, A., “Oriental and Occidental Laws in Harmonious Co-existence: The Case of Trusts in Sri Lanka”, Electronic Journal of Comparative Law, vol. 12.1 (May 2008), http://www.ejcl.org
- De Silva, M.U., “Emergence of Two Legal Cultures in the Sri Lanka and the Growth of a Litigious Nation Under Western Powers”, (Thesis, University of Ruhuna, Sri Lanka), http://www.ruh.ac.lk/research/academic_sessions/2003_mergepdf/36-48.PDF
- Geiger, W., “The Mahawamsa or The Great Chronicle of Ceylon”, 1912, Oxford University Press
- Karunathilaka, H., “The Discussion at Malwana”, http://www.sundaytimes.lk/120923/funday-times/the-discussion-at-malwana-13017.html
- Nadaraja, T., “The Legal System of Ceylon in its Historical Settings”, (Brill Archive, 1975)
- Pieris, K., “Crime and Punishment in Ancient and Medieval Sri Lanka”, http://www.island.lk/2009/01/10/satmag4.html
- Rajapakse, R., “Consice mahawamsa”, 1st ed
- Skeen, W., “A Collection of Legislative Acts of the Ceylon Government from 1796”, vol 1