THE SRI LANKAN UNDERSTANDING: Evolving Laws – Procedure and Practice

The Sri Lankan Understanding airs every Wednesday, with repeats on Thursday and Sunday on a local private TV channel and is available on You tube

The Sri Lankan Understanding, a platform which explores the course taken by Sri Lanka in the past, attempts to identify the placement of the country at present, and is geared towards unravelling the potential for a future which can be fruitful. Bringing together academics, historians, diplomats, writers and key personalities, The Sri Lankan Understanding is aimed at filling a lacuna in society wherein comprehending that which has been, grasping realties, and understanding the opportunities ahead is sorely lacking. 

The fifth episode on ‘Evolving Laws: The Procedure and the Practice’ featured President’s Counsel Palitha Fernando. Having served as the 43rd Attorney General and 42nd Solicitor General of Sri Lanka, he was also a Judge Advocate of the Sri Lanka Navy and holds the rank of Rear Admiral. An alumnus of the Sri Lanka Law College and the University of Bristol, Fernando has also taught varied aspects of law at many institutions. 

Given that legal systems, laws and the practice have evolved over periods of time, Mr. Fernando highlighted primarily the essence of law which was to settle disputes and how at the very earliest stages it was the show of strength that was used. Quoting Hugo Grotius, he noted that under international law one of the means of resolving disputes was resorting to war and was much used in early times. Talking about these primitive times, he discussed how a leader would be appointed to sort out issues that may arise in communities. This process gradually changed as a regulation of society took place and laws were created to resolve issues that arise at various instances. 

Reflecting upon the ancient period in Sri Lanka, Mr. Fernando opined that we did not have a recorded history of an established legal system during the times of the kings. Given that the king was all powerful with the exercising of executive, legislative and judicial powers, the ruler had officials to implement the law according to the directives issued. Whilst the king held the right of determining the outcome of a dispute there was even an appeal mechanism. The use of mediation for the resolution of disputes, he likened to mediation boards that exist at present through which attempts are made to find settlement outside the judicial system. 

During the time of colonialism, Mr. Fernando discussed the introduction of legal systems that began with the Dutch. In 1505 when the Portuguese arrived, their interest was not in the introduction of laws but in the propagation of religion in society. It was the Dutch who changed the course of law in the island with the introduction of the Roman Dutch law, and for the first time, an established court system, with courts in Colombo, Galle and Jaffna. With laws from the Justinian Court, the Dutch introduced the Maritime Provinces and sough to codify the existing systems. They codified the Thesavalamai laws, as well as the religious laws of the Muslim community, but the laws of the Sinhala kings were so diverse that they did not codify them, and instead introduced the Roman Dutch laws in the Maritime Provinces. 

When the British came to the island they advocated a long-held policy of not disturbing the prevailing laws in their colonies, and continued with the existing laws during their time as well. However Mr. Fernando stressed that there was one law that the British did not want to continue with and subsequently abolished. This was the criminal law, which they found too harsh, and the punishments too hard. Instead the British brought in the Criminal Laws in existence in the United Kingdom, and up to date the Penal Code in Sri Lanka is the criminal law that they introduced. 

This was the criminal law, which they found too harsh, and the punishments too hard. Instead the British brought in the Criminal Laws in existence in the United Kingdom, and up to date the Penal Code in Sri Lanka is the criminal law that they introduced

Mr. Fernando outlined how the Soulbury Constitution continued until 1972 when a constitutional revolution occurred in the country. There was a procedure to be followed in changing the Soulbury Constitution but the administration at the time opted instead to go before the people asking for a mandate to change the constitution without following the prescribed procedure. He noted how it was not Parliament that finally changed the constitution but a Constituent Assembly meeting at the Nawarangahala that adopted the new Republican Constitution. The next Republican Constitution in 1978 added the Fundamental Rights Chapter. Although the 1972 Constitution recognized Fundamental Rights it was only from 1978 onwards that there was enforcement machinery. 

Focusing on the future, Mr. Fernando outlined how many changes have been made in the ensuing decades. Today the world is using technologically advanced methods whereby proceedings are online, which is something that Sri Lanka is gradually introducing now. Stressing that laws have to change and change for the better, Mr. Fernando highlighted how the pandemic has resulted in the expeditious resolution of legal matters. 

The Sri Lankan Understanding which is geared towards generating an interest and intrigue in the multifaceted aspects of the country airs every Wednesday, with repeats on Thursday and Sunday on a local private TV channel and is available on You tube. The programme is for those keen on gaining a clearer perception of the historic features, and prospective facets of the pearl of the Indian Ocean, as it covers a gamut of issues.