Transition of the law

Lawyer U.L. Kadurugamuwa discusses the growth of the legal system in Sri Lanka

At the beginning of this century, two great legal traditions of the world - the civil law system inherited from the Dutch also known as the Roman-Dutch Law and the common law system known as the English law exerted the most influence on the law of the land. A hundred years into British subjugation the people of the land were in the process of acclimatizing themselves to a newly established court structure and legal system under their new masters.

The change was as rapid as the land rush that was taking place - a result of the transformation of the economy. During the boom time of this new plantation economy, laws were enacted or adopted directly from England to suit the needs of the Plantation Raj. Although the laws of persons, property, succession, contracts and torts is fundamentally Roman-Dutch these were modified to reflect English principles by statute and judicial decisions.

On the other hand English principles were incorporated to the exclusion of all others in areas such as criminal law, mercantile law, the law of evidence and civil and criminal procedure.

While the British system had at its root, equality before the law, it did not serve all equally. The new legal system was long, arduous and expensive to the native. Accustomed to a less complicated form of litigation based on common sense, conciliation and compromise rather than meting out punishment, this resulted in a travesty of justice as the native did not know what the new system was all about.

There was also a surge in criminal activity as a considerable proportion of the population found it difficult to adjust itself to the changing environment in which it was compelled to live.

The imported judicial system encouraged this trend without suppressing it.

The Ceylon Police was officially founded in 1867 to stem this lawlessness and the British Penal Code was gradually incorporated into the laws of Ceylon.

Under the same system, law as a profession became very lucrative as there was much legal work to be done in the transformation of the country's economy to a modern plantation export economy. According to the 1921 Census the number of persons in the legal profession had increased from 356 in 1901 to 800 in 1921 and at present there are over 5,500 Attorneys-at-Law registered in the Bar Association of Sri Lanka.

We will be guilty of a serious breach if we fail to mention the contribution made by the leading Proctors and Solicitors of the time to the development of commercial law and practice in Ceylon and here we quote Sir Thomas Villiers: "The three great lawyers who received the esteem and affection of the whole mercantile community were F.C. Loos, F.J. & G. de Saram (the founder of the firm of F.J. & G. de Saram) and V.A. Julius." It has been said of the firm of F.J. & G. de Saram that it had in its fold a significant portion of the civil business generated by leading British banks and other commercial establishments which indicated the measure of trust placed in the firm.

In the first quarter of the 20th Century, Lankans intensified their cry for self-governance for they sensed the powers of the British Empire waning in the aftermath of World War I. Successive constitutional reforms culminated in the Lankans obtaining universal suffrage in 1931 and Independence on February 4, 1948. The locals now had complete freedom to enact their own laws.

The mid-1950s saw the first wave of nationalization sweeping the country and laws were enacted which reflected the Ceylonisation programme of the government. State intervention increased in many areas of national life and the plantations - the great bastion of British colonial rule - came under state control.

The new Republican Constitution of 1972 finally severed Ceylon's links with the British monarchy and the Privy Council - the highest court of the land. The Administration of Justice Law No. 44 of 1973 made the Supreme Court the final court of appeal and was expected to usher in a new era in the administration of justice in Ceylon. It replaced the Criminal and Civil Procedure Codes and its objectives as set out in Section 2 were:

(a) simplicity and uniformity in procedure;

(b) fairness in administration;

(c) the elimination of unjustifiable expense and delay;

(d) the just determination of every judicial proceeding.

This was thought by many to be a far-sighted piece of legislation that helped to streamiline the judicial process considerably for the benefit of the litigants.

It was also the era in which the independence of the Judiciary was questioned in relation to the conduct of the government at the time. The conflict between the architect of the new order, Justice Minister Felix Dias Bandaranaike and Chief Justice Victor Tennekoon highlighted the concern of the Judiciary as to the interference by the Executive arm of the government.

The bone of contention was the displeasure of the Chief Justice over the manner in which arrangements for the official inauguration of the new system for the administration of justice were handled by the Ministry of Justice.

It was his concern that "to participate in such a programme would result in a loss of prestige, dignity and reputation for independence, which the Constituent Assembly by its Constitution and the National State Assembly by its Laws have been at pains to preserve and secure".

In the aftermath of a bloody and bitter insurgency in 1971, restrictions were introduced in the area of trade and commerce and the open economy that survived even colonial subjugation was closed to a great extent. It was also in this period that laws such as The Land Reform Law No. 1 of 1972 was introduced which vested all large tea and rubber estates owned by the Agency Houses and Sterling Companies completely in the hands of the State.

The economy was liberalized once again in 1977 with the advent of a new government and the second Republican Constitution known as the Constitution of the Democratic Socialist Republic of Sri Lanka was introduced in 1978.

This was an amalgamation of the West- minster system and the French presidential system in which there was an Executive President with real power as well as a Prime Minister and a Cabinet of Ministers.

Despite changes in government and the economic policies of the State, the principle of individual liberty, so vital an element in a democracy, ran through the fabric of the colonial and post-colonial legal system of Sri Lanka and both Republican Constitutions contain provisions for the assertion of the fundamental rights of individuals.

The influence of the Roman-Dutch Law, the English Law and other sources of law has ensured that an individual in his lifetime is governed by different systems of law in respect of different transactions and legal relations in Sri Lanka and what has evolved today is a rule of law which could essentially be called the Law of Sri Lanka.

The writer is a Senior Partner at F.J. & G. de Saram, Attorneys-at-Law, a firm that functioned right through the century.

The original Voetlights in 1899: Standing: C. Batuwantudawe, E.W. Jayewardene, L. Maartensz, A. Drieberg, D.Browne, G.S. Schneider, G. Brooke Elliott, F.J. de Mel. Seated: W.N.S. Aserappa, J. Van Langenberg, Morgan de Saram, B.W. Bawa, Hector Jayewardene.

Voetlights: Not only for wining and dining

When ten members of the Junior Bar sat down to dinner at the Bristol Hotel in Colombo on the 10th day of May 1899, little did they realize that the organization they were founding would last throughout the 20th Century.

Mr B.W. Bawa, as he then was, being invited to give the organisation a suitable name suggested that it be called 'the Honourable Society of Voetlights'. The objects of the newly formed society were, with very good reason, set out in the widest terms possible, viz. 'to promote unity and co-operation in furthering the best interests of the Bar and would not be merely an excuse for consumption of liquor and rich victuals'.

Though some of the founding members hoped that 'in due time, this friendly little society might expand into a proper Bar Association', we know that today all such hopes were in vain. Good wining, dining and epicurean delights became an important part of all meetings in the history of the society.

The annual meetings of the society have now matured into an occasion when as many as 500 members of the Bench, official and unofficial Bar meet, drink and dine in a unique spirit of camaraderie and fellowship. Every year, Voetlights still drink a toast to the 'pious memory of Johannes Voet' but what the venerable Dutch jurist may think of the rest of the proceedings of the meeting is best left to conjecture.

Judging by the distinguished and enthusiastic gathering assembled today, one would be justified in concluding that the society has indeed served a purpose. What that purpose is, is best left to a social scientist to determine.

In 1999, the Voetlights Society held their centenary banquet at the Hilton hotel with over 550 members present.

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