#Critically evaluate following topics.
a) Primary sources of law including the Constitution
In the Sri Lankan legal system, primary sources are the authoritative origins of law that are legally binding upon all courts, institutions, and individuals. These sources form the bedrock of the legal framework, and their hierarchy and interaction define the country's legal order. The principal primary sources in Sri Lanka are the Constitution, legislation, and judicial precedent.
The Constitution of the Democratic Socialist Republic of Sri Lanka of 1978 is the supreme law of the land. Its supremacy is explicitly declared in Article 1, which establishes Sri Lanka as a free, sovereign, and independent state, and Article 3, which states that sovereignty is in the people and is inalienable. Article 4 outlines how this sovereignty is exercised through the legislative, executive, and judicial powers of government. Any law or action that is inconsistent with the Constitution is, in principle, void. The Constitution establishes the structure of the state, the powers of its main organs, and guarantees fundamental rights to citizens (Chapter III). A key feature of its supremacy is the mechanism for constitutional review; however, this power is limited. The Supreme Court has the sole jurisdiction to review the constitutionality of Bills before they are passed into law, but once a Bill receives the Speaker's certificate and becomes an Act of Parliament, its validity cannot be challenged in any court (Article 80(3)). This pre-enactment review system places significant emphasis on the legislative process but removes the possibility of post-enactment challenge, a point of some academic criticism (Cooray, 1982).
Legislation, or statutory law, is the second major primary source. This consists of Acts passed by the Parliament of Sri Lanka. Parliament, as the supreme legislative body, has the power to enact laws for the peace, order, and good government of the country. This source of law is extensive, covering almost every aspect of modern life, from commercial transactions to criminal justice.
A critical evaluation reveals a significant tension within Sri Lanka’s primary legal sources, centring on the Constitution’s supremacy. Article 16(1) of the Constitution contains a ‘savings clause’ which preserves all existing written and unwritten laws that were in force prior to its enactment in 1978. This means that older statutes and principles of personal law (discussed later) continue to be valid even if they are inconsistent with the fundamental rights provisions of the Constitution, such as the right to equality in Article 12. This clause has been criticised for undermining the normative power of the Constitution’s fundamental rights chapter by allowing discriminatory and outdated laws to persist (Goonesekere, 2002). Therefore, while the Constitution is declared supreme, its ability to act as a transformative document is limited by its own provisions, creating an internal contradiction that complicates the legal landscape.
b) Secondary sources of law
Secondary sources of law are materials that do not constitute binding law but serve to describe, explain, interpret, and analyse primary sources. While they lack the formal authority of a statute or a Supreme Court judgment, they often exert considerable influence on legal reasoning and the development of the law in Sri Lanka. These sources are essential for legal education, practice, and judicial decision-making.
Key secondary sources within the Sri Lankan context include scholarly writings, reports of law reform bodies, and opinions of legal experts. Textbooks and articles by eminent jurists and academics are highly regarded. The works of scholars such as C.G. Weeramantry, L.J.M. Cooray, and G.L. Peiris have been cited with approval in judgments of the superior courts and have helped to clarify complex legal principles, particularly in areas of Roman-Dutch law and administrative law. These writings provide systematic analysis and critique, offering perspectives that can guide judges in interpreting ambiguous statutes or developing the common law.
Another important secondary source is the work of the Law Commission of Sri Lanka. This statutory body is tasked with reviewing existing laws and recommending reforms. Its reports often contain detailed research and analysis of legal problems, comparing Sri Lankan law with that of other jurisdictions and proposing new legislation. While its recommendations are not legally binding and require legislative action to be implemented, they provide an authoritative basis for legal reform and public debate. For instance, the Commission’s reports on a new penal code or reforms to civil procedure have been influential in shaping the discourse on legal modernisation.
A critical evaluation of secondary sources highlights their dual nature: they are both indispensable and limited. Their main strength is their ability to provide depth, context, and critical perspective that primary sources alone may lack. A judge faced with a novel legal problem may find guidance in an academic article that has thoroughly canvassed the issue. However, their influence is entirely persuasive, not coercive. The weight given to a particular secondary source depends heavily on the reputation of the author or the rigour of the analysis. Furthermore, there is a risk that an over-reliance on certain texts can lead to a dogmatic application of law, stifling judicial creativity. In the case of the Law Commission, its effectiveness is constrained by political will; many well-reasoned proposals for reform have failed to be enacted into law, remaining as mere academic exercises. This demonstrates that while secondary sources can illuminate the path for legal development, they lack the power to compel it.
c) Doctrine of judicial precedent
The doctrine of judicial precedent, also known as stare decisis (to stand by things decided), is a fundamental primary source of law in Sri Lanka. Inherited from the English common law tradition, this doctrine requires courts to follow the legal principles established in the decisions of higher courts in previous cases where the material facts are similar. This ensures consistency, certainty, and predictability in the application of the law.
The doctrine operates within the strict hierarchy of the Sri Lankan court system. The decisions of the Supreme Court, as the apex court, are absolutely binding on all subordinate courts, including the Court of Appeal, the High Courts, and the Magistrate's and District Courts. Similarly, decisions of the Court of Appeal are binding on all lower courts. The binding element of a judicial decision is the ratio decidendi, which is the legal principle or reason for the decision. Anything else said by the judge, known as obiter dicta (things said by the way), is not binding but may be considered persuasive by other courts. Distinguishing the ratio from obiter is a key skill for lawyers and judges, though it can often be a difficult task.
A critical evaluation of the doctrine highlights a central tension between legal certainty and the need for justice and flexibility. The primary advantage of precedent is that it provides a clear guide for individuals and businesses, allowing them to organise their affairs with a degree of confidence in the legal outcome. It prevents judges from deciding cases based on personal whim, thereby promoting impartiality. However, this very rigidity can also be a significant weakness. A precedent that was established based on outdated social values or a flawed understanding of the law can be perpetuated, leading to injustice. For example, if the Supreme Court makes an erroneous decision, it will bind all lower courts until the Supreme Court itself has an opportunity to correct it.
To mitigate this rigidity, the Supreme Court has the power to depart from its own previous decisions. This provides a crucial mechanism for the law to evolve and adapt to changing societal needs. However, this power is exercised with great caution, as frequent departures would undermine the certainty that the doctrine aims to provide. In Bandahamy v. Senanayake [1960] 62 NLR 313, the court emphasised the importance of finality and certainty. The challenge for the judiciary, therefore, is to strike a balance: adhering to precedent to ensure stability while being willing to depart from it when it is demonstrably wrong or no longer serves the interests of justice. This balancing act is at the heart of the common law method and is a constant subject of judicial and academic debate.
d) Personal laws in Sri Lanka
Sri Lanka is characterised by legal pluralism, where a general law of the land coexists with several systems of personal law that apply to specific communities based on their ethnicity or religion. These personal laws are a significant feature of the legal system, governing private matters such as marriage, divorce, and inheritance for a substantial portion of the population. The main systems are Thesawalamai, Kandyan Law, and Muslim Law. Thesawalamai is a system of customary law applicable to the "Malabar inhabitants of the Province of Jaffna." Kandyan Law applies to Sinhalese who can trace their origins to the Kandyan provinces, and Muslim Law applies to those who practice Islam.
These laws originated from long-standing customs and were formally recognised by colonial administrations and preserved after independence. For example, the Muslim Marriage and Divorce Act of 1951 gives statutory force to aspects of Muslim personal law. Proponents of this pluralistic system argue that it respects the cultural and religious diversity of the nation, allowing communities to regulate their personal affairs according to their own traditions and values. This is seen as a way of accommodating minority identities within the broader state framework.
However, the continued existence of personal laws is a subject of intense critical debate, primarily because several of their provisions are in direct conflict with a modern constitutional principles and international human rights standards. The most significant tension is with Article 12 of the Sri Lankan Constitution, which guarantees equality before the law and prohibits discrimination on grounds of race, religion, sex, and other factors. For example, certain provisions within all three personal law systems have been criticised for being discriminatory against women. Under traditional interpretations of Muslim law as applied in Sri Lanka, there is no minimum age for the marriage of a girl, and procedures for divorce are significantly different and often less favourable for women compared to men (MPLRAG, 2018). Similarly, Thesawalamai contains provisions regarding property rights that have been criticised as discriminating against women.
This conflict is exacerbated by Article 16 of the Constitution, which, as noted earlier, protects these pre-existing laws from being challenged on the grounds that they violate fundamental rights. This has created a legal impasse where the state is committed to equality on one hand, but constitutionally unable to invalidate discriminatory personal laws on the other. This situation has drawn criticism from international bodies, such as the UN Committee on the Elimination of Discrimination Against Women (CEDAW), which have repeatedly called on Sri Lanka to reform its personal laws to ensure compliance with its international obligations (UN CEDAW, 2017). The critical issue facing Sri Lanka is how to balance the accommodation of cultural diversity with the universal right to equality and non-discrimination for all its citizens.
References
Bandahamy v. Senanayake [1960] 62 NLR 313.
Cooray, L.J.M. (1982) An Introduction to the Legal System of Sri Lanka. Lake House.
Goonesekere, S. (2002) ‘The Constitution and the Law: A Case for a Bill of Rights without Limitations’, in Coomaraswamy, R. and Seneviratne, C. (eds.) Audacity & Apathy: A collection of essays on the 10th anniversary of the '87 Indo-Lanka Accord. International Centre for Ethnic Studies.
Muslim Personal Law Reform Action Group (MPLRAG). (2018) Unequal & Unjust: A Case for Reform of the Muslim Marriage and Divorce Act of Sri Lanka. MPLRAG.
The Constitution of the Democratic Socialist Republic of Sri Lanka, 1978.
UN Committee on the Elimination of Discrimination Against Women (CEDAW). (2017) Concluding observations on the eighth periodic report of Sri Lanka. CEDAW/C/LKA/CO/8.
