Introduction
Defined as a ‘situation in which, two or more legal systems coexist in the same social field’,
legal pluralism carries major implications for any legal order. Sri Lankan legal system, termed as a mosaic of laws springing from diverse sources, drawn from different corners of the world, is pluralistic by nature. Owing to the colonial history and ethno-religious diversity, the pluralist system encompasses the Roman-Dutch Law, introduced to Sri Lanka by Dutch and later retained under the English colonial rule in terms of the ‘proclamation of 1799’, English law, introduced through, judicial activism, Kandyan Law, a personal law applied to Kandyan Sinhalese, Thesavalamai, a customary law, both ‘personal and territorial in character’, applied for Jaffna Tamils, and Muslim law, a strict personal law of Muslims.
However, the existence of such a diverse system, poses challenges for the unity of the legal system. We will first analyze how this legal pluralism affects the unity of the legal system and then discuss the necessity of achieving unity within the legal system while facilitating diversity and conclude with recommendations as to how this task could be achieved.
Legal Pluralism: Challenges for The Unity of The Legal System.
In a system where multiple laws coexist, overlaps between different legal systems is inevitable. In the Sri Lankan context, overlap between English Law and RDL occurs, leading to dilemma, in choosing ‘the system of law relevant to the case before the court.’ In Samed v Seguthamby, a case involved with a spread of fire to a neighboring land in an event of agricultural operation, it was debated whether the English tort rule of Rylands v Fletcher, which imposed ‘strict liability for the escape of dangerous substances’, could be a applied instead of the RDL which required the proof of negligence in the defendant. Jayawardene,J referring to past cases stated that the aforementioned rule has not been applied in ‘actions arising for damages from fire’, and the court resorted to apply RDL. As seen in this case, the overlap of laws leads to lack of clarity, contributing to the lack of reliability of the legal system. In fact, Cooray referring to an analysis by Weeramantry on the overlaps between the two systems states that RDL and English Law are competing systems. Such competition challenges the unity of the legal system, as it is contradictory to co-existence, which is the key for unity within a pluralist system. Secondly, the contradictions between the personal laws and the general law, which occur mainly in the areas of marriage, divorce and succession, leads to a ‘lack of equality on account of the pluralist system’. There are disparities on the issue of marriage between the general law and the Muslim law. For instance, polygamy is legal under the Muslim law, whereas it is prohibited and criminalized under the general law of Sri Lanka. Moreover, under the general law, both parties in a marriage ‘must have completed eighteen years of age.’ Whereas, under MMDA, even a girl
below 12-years of age can be married with the authorization of a kathi. This provision of the
MMDA, standing in conflict with the general laws of the state, is subject to widespread criticism.
Apart from the issue of equality, these contradictions allow parties to manipulate laws in their favor in order to escape liability, as seen in the case of Reid v A.G, where it was held that, a man who has contracted a marriage under general law does not commit bigamy if, while his marriage is subsisting, he marries a woman of Islamic faith, under MMDA, after embracing Islam. This decision was upheld by the Privy Council in AG v Reid, even though it was clearly unjust towards the surviving wife of the first marriage. Furthermore, under general law, a divorce is permitted only on the grounds of adultery subsequent to marriage, malicious desertion or incurable impotency concurrent to marriage. However, under the Kandyan Law, adultery by wife is a ground for divorce while, the adultery by husband needs to be coupled with incest or cruelty in order to be a valid.
This lack of uniformity in personal laws lead to a lack of cohesion among communities, creating racial disharmony, destabilizing the society and thereby negatively affecting the legal system. Finally all of this, ultimately affects the rule of law, as the basic requirements of ‘clarity’ and ‘general application’ of law is contravened by the application of special laws, leading to inequality, thus, affecting the unity of the legal system.
Achieving Unity Through Diversity: The Present Day Necessity.
Despite the aforementioned challenges, a pluralist legal system is not without its merits. Mainly, it promotes diversity by granting legal recognition for the diverse groups within the society. At the same time, the existence of different laws would mean that there is likely to be lesser loopholes through which offenders can escape liability. Hence, identifying the necessity of achieving unity in the legal system while simultaneously facilitating its diversity is of utmost importance.
An important step towards achieving unity in the legal system is, as Peiris suggests, ‘the
codification of the laws of Sri Lanka’. He correctly states that, it will reduce the complexity of the system, and provide opportunity to identify ‘conflicting approaches’, where laws overlap and contradict with each other, and evaluate their merits, in accordance with their present day significance. Supporting the evolution of customary laws to reflect contemporary realities is important in this context.
Finally, as mentioned repeatedly, through this essay, Sri Lanka is a multi-cultural society and as such, it cannot move forward without, preserving its diversity. Thus, bringing all groups within the society under one law is both impractical and undesirable. Instead, the creation of a legal system that underpins the principles of co-existence and co-operation as opposed to competition and separation is pivotal. Diverse systems of law must come together to ensure justice and uphold the rule of law through cooperation and co-existence. This will reduce the conflicts among the systems of law, and facilitate the smooth functioning of the legal system. Cooray, referring to Lord Diplock’s statement in the Kodeeswaran, case, on the ‘indigenous common law of Ceylon’, states that indigenous common law means ‘diverse traditions and systems of law, existing in Sri Lanka’, molded into a ‘composite whole’. This suggests us that achieving unity in diversity is viable, when systems come together to contribute for the legal system of Sri Lanka while maintaining their diversity.
Conclusion
The multiple systems of laws woven into the fabric of the Sri Lankan legal system, makes it
essentially pluralist in nature. Notwithstanding its merits, legal pluralism in a state can and does challenge the unity of the legal system in different ways, sometimes affecting the peace and rule of law in a state. Navigating through these challenges and recognizing and promoting the merits of a pluralist system is essential in a multi-cultural context. Therefore, respecting diversity and establishing state sponsored mechanisms to ensure the facilitation of diversity is equally important, as establishing unity within a plural legal system, in order to achieve a smooth functioning of the legal system.
CHETHANA MADUWANTHI
YEAR THREE
FACULTY OF LAW, UNIVERSITY OF COLOMBO
Rotaract Club of Faculty of Law University of Colombo 