Kandyan law contd...

Kandyan law as a territorial law
Mongee V. Sirapay
Kershaw V. Nicoll

Transformation of Kandyan law into a personal law
Williams V. Robertson (1886)
Wijesingha V. Wijesingha (1891)
Narayanee V. Muthuswamy (1894)

Kandyan Marriage Ordinance of 1859
Kandyan Marriage Ordinance of 1870
Mixed marriage between a Kandyan Sinhalese and a low country sinhalese could not have been contracted under the Kanyan Marriage Ordinance.

Matrimonial Rights and inheritance Ordinance of 1876

• In a situation where a marriage takes place between persons of different race or nationality the wife became governed by the personal lawe of the husband during the subsistance of that marriage.
• No application due to two parties were in the same race. - Manikkam V. Peter

Kandyan Succession ordinance No. 23 of 1917
Children of a

• Marriage between a Kandyan man resident in Kandyan Provinces and a woman not subjected to Kandyan law
• Marriage contracted in binna between a Kandyan woman resident in Kandyan Province and a man not subjected to Kandyan law

Shall be governed by Kandyan law.

At the time Kandyna Succession Ordinance enacted marriages between Kandyans and non Kandyans could be solemnized under then existing Kandyan marriage Ordinance of 1870.

Kandyan Marriage and Divorce Act No. 44 of 1952

• Repealed Kandyan Marriage Ordinance of 1870
• Marriages can be solemnized under the Kandyan law only between Kandyan Parties.
• Registration under the act is impulsory. (Podinona V. Herathhamy)

Kandyan law

Proclamation of 1815

Laws and institutions that existed in the Kandyan provinces before 1815 would be continued.

Proclamation of 31st May 1816

Attempt to limit the application of Kandyan law only to inhabitants of the Kandyan Provinces.

Proclamation of 1818

• Earlier proclamations ceased to have legal effect.
• Continuous application of laws according to the ancient and established usages to the inhabitants of Kandyan Provinces.
• Indicate the Courts that should hear cases of Kandyans in Criminal and Civil cases.
• Drew a distinction between tribunals which were to have jurisdiction over kandyans and others.
• Formal annexation of Kandyan Provinces to Maritime Provinces.

Law of Maritime Provinces applied.
Charter of Justice 1801
Charter of Justice 1833
Proclamation of 1799
Ordinance No. 5 of 1835

Ordinance 5 of 1852

• Restriction of Kandyan law and introduction of law of England.
• When there is a gap in kandyan law the law of maritime provinces should be used to fill the gap.
• Kandyna provinces be governed by Criminal law of maritime provinces.
• Law of maritime provinces should apply in regard to inheritance rights and Marriages of Europenas and Burghers.
• Mohommadan code should apply to all Muslims.

British Period Contd...

Proclamation of 1799

Matrimonial and testamentary cases of Dutch inhabitants should be determind by laws and institutions that existed under Dutch while native were to be governed by their own laws.

Charter of Justice 1801

• Matrimonial law of England as it existed in 1801 should apply to British and European residents (Modification to Praclamation of 1799)
• Extended jurisdiction to District Courts

Charter of Justice 1833

• Repealed Charter of Justice 1801 (Proclamation of 1799 came into operation.
• unified Cout System
• Le Mesurier V. Le Mesurier

Ordinance No. 5 of 1835

• Repealed Proclamation of 1799
• Roman Dutch law shall continue to apply. (De Costa V. BOC)
• Declared as 'Adoption of Roman Dutch Ordinance of 1938'

British Period

Proclamation of 1799

Justice should be administered in the maritime provinces according to the laws and institutions subsisted under ancient Govt. of Neterlands subjected to changes as might be made by 'lawful authority'

Application of Dutch laws during British period

• The laws of a mother country enacted before the establishment of a colony automatically apply in the colony even if they were not formally introduced into the colony. (Old statutes of Batavia)
• General statutes of the mother country enacted after the establishment of a colony did not apply without clear evidence as to the reception of such statute. (Karonchihamy V. Angohamy)
• Whole body of Dutch laws were never introduced to Ceylon but only laws that were suitable to local needs and circumstances were introduced (Karonchihamy V. Angohamy)
• Dutch Statutes which had not been disticndly rocognised and are inconsistent with reasonable practice in the colony had been abrogated by disuse (Silva V. Balasuriya)

Colonial law Principles (Campbell V. Hall)

• Laws and institutions in a colony should continue
• These laws applied equally to all persons and properties within the colony.
• English law should be introduced only if a colony was uninhabited or in a 'primitive ' state.
• English law introduced in such event was so much of English law as was applicable to the situation and conditions of the colony
• Indigenous laws which are considered to be barbarous to the English pricniple of natutal justice were treated ipso facto abrogated.

Dutch Period

System of Administration

States General
(Republic of United Netherlands)
l
East India Co.
Council of Seventeen in Netherlands
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Governor General and Council in Batavia
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Governor in Ceylon

Court System

Raden van justitie (High Court of Justice)

l

Landraden (Land or Country Court)

l

Civile Raden or Stads Raden (Civil or Town Courts)

Old Statutes of Batavia

• Promulgated in 1642
• Approval of Council of seventeen and States General in 1650
• Introduced to Ceylon by Resolution of the Dutch Council in 1666

New Statutes of Batavia

• Published in 1766
• Never recieved the approval of Council of Seventeen

Introduction to the laws of Sri Lanka

• Pre Colonial Period (Beforw 1501)
• Portuguese Period (1505-1656)
• Dutch Period (1656-1796)

Pre Colonial Period

• Did not have clearly defined concepts such as laws and customs.
• No courts system.
• Administrative Officers performed judicial functions too.

Evidenace of Pre colonial laws

• Compilation of a code of law during the reign of Dappula III
• Evidence of an officela called Lekamge
• Malvana Convention
• Kandyan Convention
• Tesawalamai Code and Mohommadan Code