JUSTICE SYSTEM IN SRI LANKA
The justice system in Sri Lanka is a complex mix of Roman-Dutch civil law, English common law, Jaffna Tamil customary law, and Muslim personal law. The criminal law is mostly derived from English common law and the judiciary is derived from the British model. The basic system of civil law, which originated with the Dutch, is mostly Roman-Dutch. Kandyans have traditionally had their own legal system. Lowland Sinhalese have traditionally followed Roman-Dutch law.
Personal law — which covers things like marriage, divorce and inheritance — is tied to each of Sri Lanka’s main ethnic groups. Muslims have their own rules, mostly in civil matters such as marriage, divorce and inheritance. Hindus, Christians, Muslims, and Buddhists all have their own family codes. The Tamil Tigers established their own justice system in the northern part of Sri Lanka that existed until they were defeated.
Sri Lanka's judicial system consists of a Supreme Court, Court of Appeal, High Court, and a number of subordinate courts. Sri Lankan law is based primarily on the British legal system but the country’s legal system reflects diverse cultural influences. Criminal law is fundamentally British. Basic civil law is Roman-Dutch. Laws pertaining to marriage, divorce, and inheritance are communal. [Source: “Countries of the World and Their Leaders” Yearbook 2009, Gale]
“Tamils and Muslims have their own laws for governing property and certain observances. Several legal systems govern the law of family relations. The General law (a combination of Roman Dutch and English law) is the main system applicable to every one except if they are governed by the personal laws. There are three other parallel systems of personal laws in Sri Lanka, i.e., Kandyan Law, The Thesavalamai (traditional Tamil law codified under Dutch colonial rule in 1707 and still observed in northern Sri Lanka) and the Muslim Law. These laws are grounded in ancient customary practices and/or religion. [Source: Jayanthi Liyanage, Virtual Library Sri Lanka lankalibrary.com ]
Sri Lanka’s court system includes district courts, magistrates’ courts, courts of request (restricted to civil cases), municipal and primary courts and rural courts. In criminal cases, the supreme court has appeals jurisdiction. Under the 1978 constitution, the other high-level courts are the court of appeal, the high court, and courts of first instance.
Sri Lanka has the death penalty. According to the BBC in 2012: No death sentence has been carried out for more than three decades in Sri Lanka. People are regularly sentenced to death in Sri Lanka but the last judicial execution happened in 1976 so there are hundreds on death row. [Source: Charles Haviland, BBC News, February 22, 2012]
Famous Jurists in Sri Lanka include Neville Samarakoon (1919-1990), one of the most controversial chief justices but recognized for standing up for the protection, independence and integrity of the judiciary; Senator S.Nadesan (1902-1986), acknowledged as one of Sri Lanka's most brilliant lawyers and advocate of human rights and social justice; and Justice Christie Weeramantry (1926-2017), regarded as one of the greatest jurists, serving as a judge of the International Court of Justice in the 1990s.
Judicial Branch of the Sri Lankan Government
The judicial branch is composed of the Supreme Court of the Republic and the Court of Appeals, which operate independently of the executive and legislative branches. The Supreme Court consists of the chief justice and nine justices. The court has exclusive jurisdiction to review legislation. The chief justice is nominated by the Constitutional Council (CC), a nine -member high-level advisory body, and appointed by the president. The other justices are nominated by the CC and appointed by the president on the advice of the chief justice; all justices can serve until age 65. Subordinate courts are Court of Appeals; High Courts; Magistrates' Courts; municipal and primary courts , [Source: CIA World Factbook, 2020]
Although Sri Lanka's colonial heritage fostered a tradition of judicial freedoms, this autonomy has been compromised since independence by constitutional changes designed to limit the courts' control over the president and by the chief executive's power to declare states of emergency. Also, Parliament's willingness to approve legislation, such as the 1979 Prevention of Terrorism Act, vested the government in the late 1980s with broad powers to deal with subversives, or those deemed subversive, in an essentially extralegal manner. Observers in the late 1980s reported that the act facilitated widespread abuses of power, including the systematic torture of detainees, because it recognized the admissibility as evidence of confessions to the police not made in the presence of a magistrate. [Source: Russell R. Ross and Andrea Matles Savada, Library of Congress, 1988 *]
The Supreme Court has jurisdiction over all lower courts and is responsible for ensuring that laws do not violate the constitution. Under the Constitution, the highest court is the Supreme Court, headed by a chief justice and between six and ten associate justices. Supreme and High Court justices are appointed by the president. Superior Court justices can be removed on grounds of incompetence or misdemeanor by a majority of Parliament, whereas High Court justices can be removed only by a judicial service commission consisting of Supreme Court justices. The Supreme Court has the power of judicial review; it can determine whether an act of Parliament is consistent with the principles of the Constitution and whether a referendum must be taken on a proposal, such as the 1982 extension of Parliament's life by six years. It is also the final court of appeal for all criminal or civil cases.*
The Supreme Court is authorized to give advisory opinions and has original jurisdiction on all constitutional matters, as well as on such other matters as breach of parliamentary privilege, protection of fundamental rights, election petitions, and other matters over which Parliament has legislative power. [Source: “Cities of the World”, The Gale Group Inc., 2002]
Buddhism and Justice in Sri Lanka
According to the “Worldmark Encyclopedia of Religious Practices”: Buddhism often has been portrayed in the West as a mystical or otherworldly tradition. But early on Buddhist kingship was legitimated by a rich mythology that stressed the moral justice administered by a righteous king (cakravartin) who conquered by moral example rather than by force. Ashoka's rule of dharma became a paradigm for all Theravada-inclined kings to emulate, the physical and social well-being of the people being the paramount responsibility of the ruler. [Source: “Worldmark Encyclopedia of Religious Practices”, Thomson Gale, 2006]
Since the disestablishment of kingship and the resurgence of indigenous culture and nationalism in the late nineteenth century, Buddhist concepts of morality have frequently fused with more secularly oriented initiatives to alleviate the suffering (dukkha) of the people. The Sigalovada Sutta is a good text illustrating the importance of social relations. In that text the Buddha puts forward the view that instead of cultivating important relations with the deities of the cardinal directions, Buddhists should concentrate on honoring and cultivating relationships with their parents, children, teachers, employers, and so forth.
“Sarvodaya, a Buddhist-inspired non-governmental organization founded in 1958 by a schoolteacher, A.T. Ariyaratne, aimed at uplifting village life through the alleviation of poverty, the promotion of sanitation and sustainable development, and the education of rural youth, remains an excellent example of how Buddhist values promote social justice in contemporary Sri Lanka. Though suicide is clearly condemned within Buddhist thought, Sri Lanka has one of the highest suicide rates in the world.”
Criminal Justice System in Sri Lanka
Founded on the principles of British law, the Sri Lankan criminal justice system underwent major changes in the 1970s as the government attempted to cope with the challenges posed by both Sinhalese and Tamil insurgencies. Through a series of new laws, constitutional provisions, and emergency regulations, Sri Lanka acted to enlarge the legal powers of the police and armed forces and to increase the capacity of the courts to deal with the growing number of cases. These changes were at the expense of individual civil liberties, and the new powers of the state evoked strong criticism from all ethnic communities. The most significant changes affected the rules of search, arrest, and seizure and the procedures by which criminal cases were investigated and tried. Through all this flux, the one element that remained relatively constant was the Penal Code, established in the late nineteenth century by the British colonial government. Although various individual provisions were amended to suit changing social conditions, in 1988 the general classification and definition of crime and punishment set forth in the code remained the basis of criminal law. [Source: Russell R. Ross and Andrea Matles Savada, Library of Congress, 1988 *]
Following the insurrection of 1971, the judicial system was flooded with thousands of young insurgents who had played varying roles in the attempt to overthrow the government. The established legal channels — holdovers from the colonial era — were clearly insufficient to deal with the crisis. At the same time, the government realized that any significant delay in the trial and settlement of cases would only serve to increase the alienation that had led to the rebellion. As a temporary measure, the parliament passed the Criminal Justice Commissions Act of 1972, providing for the establishment of special commissions outside the normal judicial structure and empowered to conduct cases free from the usual stringent rules of procedure.*
The judicial crisis of the early 1970s also served to promote long-term reforms that had been under consideration for more than twenty years. In 1973 the parliament passed the Administration of Justice Law, a bill to reorganize the entire judicial system. Heralded as a major break with inherited British colonial traditions, the new law was intended to simplify the court structure and speed the legal process. It repealed thirteen acts and ordinances, including the Courts Ordinance and the Criminal Procedure Code of 1898, replacing them with five chapters covering the judicature, criminal, testamentary, and appeals procedures and the destruction of court records. The seven levels of the British court structure were replaced with four levels, including a Supreme Court that held only appellate jurisdiction. The high courts, district courts, and magistrate's courts were assigned jurisdiction respectively over the island's sixteen judicial zones and their respective forty districts and eighty divisions.*
After Bandaranaike's defeat in the 1977 elections, the new United National Party government moved quickly to revise the workings of the criminal justice system. Of the five chapters of the Administration of Justice Law, two (on criminal procedure and appeals) were replaced by the Code of Criminal Procedure Act of 1979, and a third (on the judiciary) was substantially amended by the 1978 Constitution. These radical changes, coming on the heels of the previous reforms, were motivated by a variety of concerns. First, there were political considerations. Jayewardene's electoral success had been based in part on a popular reaction against the extraordinary legal and judicial powers assumed by the Bandaranaike government; the previous six years had been marked by an unbroken state of emergency, the creation of the highly powerful Criminal Justice Commissions, and a growing constriction of the freedom of the press. In his first year in office, Jayewardene declared an end to emergency rule, repealed the Criminal Justice Commissions Act, and engineered a new constitution with explicit safeguards of fundamental rights. These rights, set forth in Article 13, included free speech, the right to a fair trial, and freedom from arbitrary arrest and detention. Although many of these rights had appeared in the previous constitution, the new document put them under the jurisdiction of the courts for the first time.*
A second motive for the changes stemmed from the sudden expansion of the Tamil insurgency in the late 1970s. Faced with a growing number of terrorist activities in the north, the Jayewardene government moved to streamline the judicial system and establish clearer lines of jurisdiction between the various levels of courts. Primary jurisdiction over criminal cases, previously the concurrent right of three levels of the judiciary, was now confined to two levels, the high court and the magistrate's courts, with their respective domains clearly demarcated in the new criminal procedure code.*
The liberalizations of the Jayewardene government soon fell prey to the nation's deteriorating security situation. Hampered by the civil liberties embedded in the new laws and codes, the police and armed forces were unable to deal with an insurgent movement that involved a growing portion of the Tamil civilian population. Legal sanctions against terrorism began with the Prevention of Terrorism Act of 1979, followed by further antiterrorist provisions in 1982 and full-scale emergency regulations in 1983. With the consent of Parliament, these regulations were renewed on a monthly basis. By early 1988, the existing criminal justice system was a composite of permanent and provisional legislation. In contrast with the relatively stable Penal Code, the judicial structure and the procedures for criminal cases reflected the complex and sometimes contradictory interweavings of the Administration of Justice Law, the Constitution, the Code of Criminal Procedure, and the emergency and antiterrorist provisions enacted to cope with the Tamil insurgency.*
Penal Code of Sri Lanka
The passage of the Penal Code, Ordinance Number 2 of 1883, marked an important stage in the island's transition from RomanDutch to British law. Despite the wide variety of amendments to the code, from 1887 to as recently as 1986, it remained substantially unchanged, and established a humane and unambiguous foundation for criminal justice. Crimes are divided into eighteen categories that include offenses against the human body, property, and reputation; various types of forgery, counterfeit, and fraud; offenses against public tranquillity, health, safety, justice, and the holding of elections; and offenses against the state and the armed forces. The code provides for six different types of punishment: death by hanging, rigorous imprisonment (with hard labor), simple imprisonment, whipping, forfeiture of property, and fine. For sentences that involve whipping, the provisions of the Penal Code have been modified by the Code of Criminal Procedure, which sets a maximum sentence of twenty-four strokes, and requires that a medical officer be present during the execution of the sentence. Offenders under sixteen are given a maximum of six strokes with a light cane, and the sentence must be carried out in the presence of the court and, optionally, of the parents. In cases of imprisonment, the Penal Code specifies a maximum sentence permissible for each offense, leaving the specific punishment to the discretion of the judge. Imprisonment for any single offense may not exceed twenty years. The death penalty is limited to cases involving offenses against the state (usually of open warfare), murder, abetment of suicide, mutiny, and giving false evidence that leads to the conviction and execution of an innocent person. If the offender is under eighteen years of age or pregnant, extended imprisonment is substituted for a death sentence. [Source: Russell R. Ross and Andrea Matles Savada, Library of Congress, 1988 *]
An attempt by the government to eliminate capital punishment received mixed reactions. In April 1956, the Bandaranaike government proposed the suspension of the death penalty for murder and abetment of suicide for a trial period of three years; this experiment was to be reviewed thereafter with the aim of abolishing capital punishment from the statute book. Parliament passed the Suspension of Death Penalty Bill in May 1956.*
In October 1958, the government appointed a commission on capital punishment to examine the question of whether the suspension had contributed to any increase in the incidence of murder. The commission released a provisional report shortly before Prime Minister S.W.R.D. Bandaranaike was assassinated in September 1959 (see Sri Lanka Freedom Party Rule, 1956-65). Concluding that there was no immediate evidence to support a resumption of capital punishment, the commission recommended that the suspension be continued until April 1961 to permit a more extensive and conclusive study. As a result of the assassination, however, the commission's recommendation was set aside. In October 1959, the government decided to restore the death penalty, and a bill to this effect was passed in November 1959.*
Courts in Sri Lanka
As defined by the Constitution of 1978, the judiciary consists of a Supreme Court, a Court of Appeal, a High Court, and a number of magistrate's courts (one for each division, as set out in the Administration of Justice Law). In cases of criminal law, the magistrate's courts and the High Court are the only courts with primary jurisdiction, and their respective domains are detailed in the Code of Criminal Procedure. Appeals from these courts of first instance can be made to the Court of Appeal and, under certain circumstances, to the Supreme Court, which exercises final appellate jurisdiction. In all cases, the accused has the right to representation by an attorney, and all trials must be public unless the judge determines, for reasons of family privacy, national security, or public safety, that a closed hearing is more appropriate. [Source: Russell R. Ross and Andrea Matles Savada, Library of Congress, 1988 *]
The vast majority of the nation's criminal cases are tried at the lowest level of the judicial system, the magistrate's courts. Cases here may be initiated by any police officer or public servant, or by any oral or written complaint to the magistrate. The magistrate is empowered to make an initial investigation of the complaint, and to determine whether his court has proper jurisdiction over the case, whether it should be tried by the High Court, or whether it should be dismissed. Magistrates' courts have exclusive original jurisdiction over all criminal cases involving fines of up to Rs1,500 or prison sentences of up to two years. If the magistrate's court is determined to have the necessary jurisdiction, prosecution may be conducted by the complainant (plaintiff) or by a government officer, including the attorney general, the solicitor general, a state counsel, a pleader authorized by the attorney general, or any officer of any national or local government office. At the trial, the accused has the right to call and cross-examine witnesses. Trials are conducted without a jury, and the verdict and sentence are given by the magistrate. Any person unsatisfied with the judgment has the right to appeal to the Court of Appeal on any point of law or fact.*
For criminal cases involving penalties over Rs1,500 or two years imprisonment, original jurisdiction resides with the High Court. The High Court is the highest court of first instance in criminal law, and exercises national jurisdiction. Prosecution must be conducted by the attorney general, the solicitor general, a state counsel, or any pleader authorized by the attorney general. During the trial, the accused or his or her attorneys are allowed to present a defense and call and cross-examine witnesses. For more serious offenses, including crimes against the state, murder, culpable homicide, attempted murder, and rape, the law provides for trial by jury. In such cases, a jury of seven members is chosen by lot from a panel elected by the accused unless the court directs otherwise. Both the prosecution and the defense have the opportunity to eliminate proposed members of the jury. The jury is required to reach a verdict by a majority of no less than five to two. (Under the Prevention of Terrorism Act of 1979, the right to a jury was suspended for a wide variety of offenses involving violations of communal harmony defined as incitement of one ethnic group against another.) In cases where the law does not prescribe trial by jury, the judge gives the verdict and passes sentence at the conclusion of the hearings. As in the magistrate's courts, the accused has the right of appeal to the Court of Appeal on any matter of law or fact.*
As its name suggests, the Court of Appeal has only appellate jurisdiction in matters of criminal law. Cases before the court are conducted without a jury. Appeals from the High Court must be heard by a bench of at least three judges, whereas appeals from a magistrate's court require at least two judges. Verdicts are reached by majority decision, and therefore a supplemental judge is added in cases of a split vote. As in other courts, appellants are entitled to representation by an attorney, but if they cannot afford legal counsel, the Court of Appeal may, at the discretion of the judges, assign an attorney at the court's expense. After the court has handed down its decision, further appeal to the Supreme Court may be made on any matter involving a substantial question of law, but an appeal requires the approval of either the Court of Appeal or the Supreme Court itself.*
The Supreme Court was substantially refashioned by the 1978 Constitution, with many of its former functions reverting to the Court of Appeal. The Supreme Court in the 1980s consisted of a chief justice and between six and ten other justices who sit as a single panel on all cases before the court. Cases are conducted without a jury, and the court exercises final appellate jurisdiction for all errors in fact or in law.*
Personal Law in Sri Lanka
Personal law — which covers things like marriage, divorce and inheritance — is tied to each of Sri Lanka’s main ethnic groups. Muslims have their own rules, mostly in civil matters such as marriage, divorce and inheritance. Hindus, Christians, Muslims, and Buddhists all have their own family codes. The Tamil Tigers established their own justice system in the northern part of Sri Lanka that existed until they were defeated.
Ramani Muttettuwegama wrote: “In Sri Lanka, several legal systems govern the law of family relations. The General law (a combination of Roman Dutch and English law) is the main system applicable to every one except if they are governed by the personal laws. There are three other parallel systems of personal laws in Sri Lanka, i.e., Kandyan Law, The Thesavalamai and the Muslim Law. These laws are grounded in ancient customary practices and/or religion. [Source: Ramani Muttettuwegama]
The important thing about personal laws is that they only apply to the 'private' sphere of family life. A person's rights flowing from marriage and parenthood as well as the right to own, dispose of and inherit property are covered by the personal laws. It is in this private sphere that many of the discriminations on the basis of gender which remain unacknowledged and invisible take place. This has created the tension in Sri Lanka between the rights of women in general and the rights of minorities. Given the context of a war whose roots belong to ethnic tensions, it is unlikely that we would see in the next few years any amendments to the Personal laws, which would result in positive change for women. This is because the concept of women's right to equality has been continuously subordinated in Sri Lanka to the major debate on minority rights.
The personal laws not only set up parallel legal standards, applicable to women depending on the community they (or their husband) belongs to, they also set up parallel adjudicating mechanisms. For instance, General, Kandyan and Muslim marriages are registered by three different types of registrars. Further, disputes relating marriage are also resolved by different authorities. In terms of Muslim personal law, almost every aspect of it is first adjudicated by the Quazi and it is only an appeal that lies to the common Court of Appeal. In terms of the Kandyan law, marriages are registered and dissolved by special registrars. Under the general law, registration is by specially appointed registrars and the dissolution is adjudicated by the District Court.
History of Personal Law in Sri Lanka
Ramani Muttettuwegama wrote: “The origin of separate systems of personal laws as codified lies in the interest of the colonialists. Both the Dutch and British set up a system of public law, which was uniform as well as familiar to themselves. However, they were content to leave the various systems of personal laws, which did not impede or impact on the general system, intact as long as there was a system that could be identified and applied by the Courts when necessary. The reluctance to take on the massive task of drawing up a general system of law which would satisfy the traditional ideas of all the communities coupled with the various strategies employed by the colonialists in governing the country seems to have contributed to the decision to leave in place the various systems. The need to pacify minority communities also played a determining role in this decision. [Source: Ramani Muttettuwegama]
However, in the process of codification, the variety of sources that the traditional legal systems relied upon seem to have been ignored, leaving behind a mass of laws which do not form a correct representation of the systems. Given that the sources of information on the "traditions" were almost exclusively upper class/caste males the resulting distortions are obvious. This process has led to many problems and gaps within the personal laws. Although subsequent legislation sought to rectify this, the effect of many of the problems which the gaps originally caused still remain unresolved.
For instance, in 1806, the British introduced the 'Code of Mohammedan law', which is an English translation of a Batavian Code, which was mainly a reflection of Shafie laws. Since its introduction, Muslim personal law was interpreted with reference to the Code. However, there are people from other sects who are also Muslims who reside in Sri Lanka. The current law makes references to the "laws that govern each sect" and leaves it to courts to trace its own sources on the applicable norms. The Islamization of Muslim Personal laws in Sri Lanka was as a result of reforms that were initiated during the British period but finalized post independence.
A similar scenario may be traced with respect, for instance, with the development of the Thesavalamai. It is considered to have emerged from a system of laws that were applicable to ancient Tamils, both in Sri Lanka and in India. Thus, originally, it was heavily matriarchal in its basis. This changed over a period of time. The first attempt at codification was by the Dutch in 1707 that resulted in the collection of the laws and customs by Claasz Isaacsz being made into the "Thesavalamai Code". During the British period, the Code was modified upon several instances. Finally, now, the Code is only of persuasive value with the enforceable areas of law being contained in several legislative enactments. The Matrimonial Rights and Inheritance Ordinance (Jaffna) 1911 first amended the system of intestate succession to change the order of some collaterals vs. some ascendants. The rights of married women were amended in 1947 to correct a mistake in the 1911 version of the Act.
In terms of the transition from a colonial to post colonial state, the legal rights of women in terms of personal laws did not change much. The members of the legislature followed the policies of the old colonial rulers in not wishing to make drastic changes to personal laws that were not authorized by the members of each community that were governed by these laws. Thus, although both the Constitution of 1972 and 1978 recognize the right to equality and the 1978 Constitution goes even further and recognizes the right to non discrimination, the discriminatory impact of each personal law on women within each community has never been addressed. Up to date no challenge has been raised in the Court with respect to the tension between the right to equality and the right to freedom of culture and religion.
Kandyan and Thesavalamai Law
The Kandyan law cites as its source the laws and customs of the Kandyan Kingdom (the last area of Sri Lanka to be colonised) and is applicable to all Kandyan Sinhalese. A "Kandyan Sinhalese" is one whose parents can trace their lineage to being residents of the Kandyan Provinces during the Kandyan Kingdom and include those who currently do not reside in "Kandyan areas". Thus not all people domiciled within the Kandyan provinces fall within the definition of a "Kandyan Sinhalese". [Source: Ramani Muttettuwegama, Virtual Library Sri Lanka lankalibrary.com ]
The areas of Kandyan law that are currently retained in Sri Lanka relate to marriage and divorce and intestate succession. All Kandyans have the option of choosing whether they marry under the Marriage and Divorce (Kandyan) Act [M &D (K)Aj and, thus be governed by the Kandyan laws or the General Marriages Ordinance in which case, they would be governed by the Roman Dutch law. In the case of intestate succession, a Kandyan person is governed by the Kandyan Law by virtue of the Kandyan Law Ordinance (KL) as well as the Matrimonial Rights and Inheritance Ordinance. Some areas of the Kandyan laws on adoption are also applicable here. In all other areas such as maintenance and custody the general law applies.
The Thesavalamai is part of some ancient customs of Tamils in Sri Lanka and India. In Sri Lanka the law is applicable to the " Malabar inhabitants of the Jaffna Peninsular" and the persons governed by the law include those who do not reside in Jaffna any longer. The only areas of the Thesavalamai personal laws that are now applicable are matrimonial rights with respect to property and intestate succession. These are governed by the Matrimonial Rights and Inheritance (Jaffna) Ordinance [MR &I (J)O]. In all other areas, the general law applies.
For Kandyan, Thesavalamai and General law intestate succession is adjudicated by the District Courts. The Thesavalamai is not applicable to the area of marriage registration etc. and persons governed by the Thesavalamai for interstate succession are governed by the general law for all aspects of marriage except the control of property by women. I have outlined, some areas that may be of interest and not generally known or understood about the personal laws and their impact in Sri Lanka.
Muslim Laws in Sri Lanka
Ramani Muttettuwegama wrote: The Muslim special laws are applicable to people who follow Islam. In all areas of family the Muslim law applies and, unlike with Kandyans, in the event of marriages between Muslims, they do not have the option of marrying under the General law at all. Marriage, divorce and all other related areas are governed by the Marriage and Divorce (Muslim) Act No. 13 of 1951 and the subsequent amendments. The act states that the law is applicable to marriages and divorces and other matters connected herewith, of Muslim inhabitants of Sri Lanka. This Act covers a range of areas and clarifies the situation of women belonging to the Shafi sect. The Act also goes on to state that the status and rights and obligations of the parties shall be determined according to the Muslim law governing the sect to which the parties belong and that non/registration of marriage alone will not in/validate a marriage or divorce which would otherwise have been valid/invalid according to the law of the sect.
The areas of intestate succession and donations are dealt with by the Muslim Intestate Succession Ordinance No.10 of 1931 (MISO) that is applicable to the intestacy of and donations made by Muslims either domiciled or owning immovable property in Sri Lanka. The Act merely states that the law applicable will be that of the relevant sect and it is necessary to examine the Muslim law itself in order to ascertain its contents. It is important to note that both Acts make provisions for the laws governing each sect that the person in question belongs to prevail, notwithstanding anything to contrary in the Act itself.
General Law in Sri Lanka
Ramani Muttettuwegama wrote: The term "General" is misleading because it is more a catchall law. Every area of family laws is covered by some aspect of general law. The area of marriage including the age of marriage, the procedure for a marriage, the registration of marriage and its dissolution either by divorce or through a judicial separation is governed by the Civil Procedure Code (CPC) and the General Marriage Ordinance (GMO). The GMO is applicable to all marriages except those between Muslims. It also contains express provisions regarding the recognition of traditional forms of marriage as being valid. [Source: Ramani Muttettuwegama, Virtual Library Sri Lanka lankalibrary.com ]
The law on the matrimonial rights of married persons with regard to property and intestate succession is contained in the Matrimonial Rights and Inheritance Ordinance (MR and IO) read together with the Married Women's Property Act (MWPA). These acts are not applicable to Kandyans, Muslims or people governed by the Thesavalamai. The law on adoption is contained in the Adoption Act as amended. On the face of it, the Act is applicable to all communities. In terms of intestate succession, however, its applicability differs according to the community.
The general law on maintenance is contained in the Maintenance Ordinance. This Ordinance has been amended recently to shift away from the old concept of indigence and need to a general right of persons to maintenance. However, since the 1951 Marriage and Divorce (Muslim) Act, the Maintenance Ordinance is not applicable to people who marry under it. Further, the Wills Ordinance which lays down the law regarding wills is applicable to any one and there are no prohibitions on the types of bequests that may be made by a will in Sri Lanka.
Women Laws in Sri Lanka
Jayanthi Liyanage wrote: In Sri Lanka, several legal systems govern the law of family relations. The General law (a combination of Roman Dutch and English law) is the main system applicable to every one except if they are governed by the personal laws. There are three other parallel systems of personal laws in Sri Lanka, i.e., Kandyan Law, The Thesavalamai and the Muslim Law. These laws are grounded in ancient customary practices and/or religion.
[Source: Jayanthi Liyanage, Virtual Library Sri Lanka lankalibrary.com ]
Ramani Muttettuwegama wrote: Under the Penal Code of Sri Lanka, until 1995, the general age of consent for sexual relations was twelve years. In 1995, the Penal Code was amended and the age of statutory rape was raised to 16 years UNLESS the person happens to be the perpetrator's wife and they are not judicially separated (Section 163(e), Penal Code as amended). Thus, unlike in the period before 1995, when although the age of consent was very low, it was uniformly applicable to every one (although even during this period Muslim girls could be married under the age of consent), now Muslims who are married are specifically not covered by the Code. [Source: Ramani Muttettuwegama, Virtual Library Sri Lanka lankalibrary.com ]
Under almost all the legal systems, the concept of separation of property forms a strong basis in terms of rights of married women. They own their own property. Dowry that is given by the family is also usually given in the woman's name. Under the Matrimonial Rights and Inheritance (Jaffna) Ordinance however, women married under the Thesavalamai can not dispose of their property without the written consent of their husband except by Will. This is not the case for other women in Sri Lanka.
Women marrying outside their community or race are governed by the personal law of their husbands while men in the same position are still governed by their own personal laws. Under the Married Women's Property Ordinance and also Matrimonial Rights and Inheritance Ordinance, a woman marrying a man of different race takes on his race until she remarries. The rule regarding the status of a Kandyan woman marrying in Binna is not made clear here. A woman marrying under the Thesavalamai is only subject to this rule during the subsistence of the marriage.
The result of this is that women who marry outside their community lose their customary rights of inheritance. Any Muslim who does not marry under the Muslim Marriage Act (and possibly their children) loses the right to inheritance under Muslim Intestate Succession Ordinance thereby further restricting the women's choices regarding self and communal identity.
Women Penalized By Sri Lanka’s Disparate Inheritance Laws
Jayanthi Liyanage wrote: When young Bandara Menike Lewke Bandara found a suitor in Kandy and left her parental home in Kurunegala on a blissful "deega" (marriage in which the bride shifts to her bridegroom's house), little she realised what it meant to her inheritance. Soon after, her father died leaving no last will to ensure her share of the paternal property. The process, applying Kandyan law, which followed to divide the estate among his children, deprived Bandara Menike of any right to her "paraveni" (property inherited from her father). Her three brothers and two sisters — one, unmarried and the other, settled in a "binna" (marriage in which the bridegroom shifts to the bride's house) — received equal shares of the "paraveni".
[Source: Jayanthi Liyanage, Virtual Library Sri Lanka lankalibrary.com ]
“Had she been a low country Sinhala or registered her marriage under the general law of the country, she would have received a share equivalent to that of her siblings. Nevertheless, women born to Kandyan families have another disadvantage. If it is proven in courts with carefully-preserved documents that her family is of Kandyan origin, dating back to 1815 when the Kandyan Kingdom fell, Kandyan law supersedes the common law in relation to property and inheritance rights.
“The Kandyan Law stipulates that a "deega" daughter coming from a family originating from the Kandyan Region (which could encompass Kandy, Kurunegala, Anuradhapura, Ampara and certain areas of Batticaloa District) is not entitled to inherit property from her father. The reasoning is that the family property, which sustains the family from generation to generation, should not be passed onto an outsider.
"We have a common criminal law for the whole island but property laws are governed by four different legal systems," said Shirani Narayana, Project Manager, from the EMACE lawyer-team. The four systems are the general (or, the common law), Kandyan, Muslim and Thesavalamai laws. The first three are practised respectively among the low country Sinhala, Kandyan Sinhala and people of Islam religion. Thesavalamai pertains to land-owners in Jaffna no matter what race they belong to, and Jaffna Tamils of Malabar origins."Lack of awareness prevents women from acting to overcome discrimination," Ms. Narayana, said. "If they only knew how, they could avoid the overwhelming cost, hassle and time wasted on long-drawn court cases. The general law, a mixture of English and Roman-Dutch law, is the most lenient to women while Kandyan law appears to be more discriminative."
The general law gives a widow one half of her late husband's property whereas the Kandyan Law deprives her of the "paraveni" (inherited from his parents) portion of the property and gives her the life estate of the "acquired" (bought during marriage) portion. If the deceased did not leave acquired property or what existed was inadequate for her sustenance, she could obtain maintenance from "paraveni". "There are no special provisions for a divorced woman in any law," said Ms. Narayana. "It all depends on how well she proves in Courts that she has no other sufficient income. In Canada, a divorcee gets 50 percent of her husband's property."
Kandyan law which deprives a "deega" married daughter of her "paraveni" further states that should she marry after her father's death, she stands bound to give over her "paraveni" portion to her brothers and single or "binna" married sisters, if they demand for it at a fair market value. "In contrast, the "binna" married wife commands great power in marriage," said Senaka Illangantilake, EMACE Legal Adviser at Rambukkana. "The bridegroom is asked to come with a Tal Atta (palm leaf) and a Hulu Atta (torch) as she could at any time throw him out of the house in rain or night." "A Kandyan woman may have a low country husband, but for her father's property, Kandyan laws apply," Ms. Narayana explained. "The form on which a couple apply for marriage, distinguishes it as Kandyan, low country, deega, binna, etc. Often, women sign the form without a murmur. They are not aware of how it will affect their property rights."
Image Sources: Wikimedia Commons
Text Sources: New York Times, Washington Post, Los Angeles Times, Lonely Planet Guides, Library of Congress, Sri Lanka Tourism (srilanka.travel), Government of Sri Lanka (www.gov.lk), The Guardian, National Geographic, Smithsonian magazine, The New Yorker, Time, Reuters, Associated Press, AFP, Wikipedia and various books, websites and other publications.
Last updated February 2022