The Reception of Islamic Law in Sri Lanka and Its Interplay with Western Legal Traditions
Chapter 15
The Reception of Islamic Law in Sri Lanka and Its Interplay with Western Legal Traditions
Thus described at the turn of the nineteenth century, Sri Lanka has an irresistible charm not only to lovers of nature but also, equally, to the comparativist. Sri Lanka’s attraction to the comparativist is its rich mix of legal traditions influenced by oriental and occidental cultures as well as a wide range of religions. With its original settlers from India, Sri Lanka came under the influence of Hindu law and Buddhism. With Arab traders, came Islam. With the Western powers—the Portuguese, the Dutch, and the British—came the modernizing influence of Christianity.
The Oriental and Occidental Mix of Sri Lankan Law
The Sri Lankan legal system is commonly described as a mix of oriental and occidental legal traditions (Cooray 1996). The Roman-Dutch law and English law make up the occidental component, whereas Kandyan law, Thesawalamai, and Muslim law form the oriental component.
The laws of the Sinhalese constitute the first known legal system of Sri Lanka. The Sinhalese are the descendants of the earliest settlers from India, principally northern India, who arrived in the fifth century BC. They gradually developed their own language, culture, and legal system, which is uniquely Sri Lankan. Still, the origin of the Sinhalese language, culture and law can be traced to India. The Sinhalese also came under the benevolent influence of Buddhism, but their laws are not to any appreciable extent based on religion. Sinhalese laws and customs flourished in the Kandyan Kingdom (the central parts of Sri Lanka with Kandy as the seat of the Sinhalese kings) and came to be administered in a hierarchy of local tribunals and courts. These laws are collectively known as Kandyan law.
During the time of Sinhalese kings, Kandyan law applied as territorial law to all inhabitants of the Kandyan provinces, who happened to be almost exclusively Sinhalese. This situation continued unchanged. However, in the maritime provinces, which were under Western domination for 450 years (by the Portuguese from 1504 to 1656, the Dutch from 1656 to 1796, and the British from 1796 to 1948), the Sinhalese gradually came to be governed by the laws of the conquerors. The Kandyan Kingdom resisted Western military advances until 1815, when it fell to the British. A convention between the British colonial administration and the Kandyan aristocracy guaranteed the continuation of the administration of justice to all classes of people in the Kandyan provinces “according to the laws, institutions and customs established and in force among them.”1 It appears that in the early years of British rule in the Kandyan provinces, Kandyan law continued to be applied as a territorial law. Later, when the influx of Europeans became sizable, the judiciary and the administration decided that the laws peculiar to native Sinhalese could not be applied to all residents. After a number of judicial decisions and legislative enactments, Kandyan law came to be regarded as a personal law applicable only to Sinhalese who were domiciled in the Kandyan provinces.
A second wave of settlers from southern India arrived in the third century BC, by which time the Sinhalese nation had been well established. These Indians settled in Jaffna province, which is today the Northern province plus certain adjoining areas. Traditionally, their descendants, called Jaffna Tamils, have constituted an almost exclusive population in that area. Because of their close connection with southern India, they preserved the Tamil language received from there and continued to be influenced by Hindu law as well as southern Indian customs and practices. Their laws—collectively known as Thesawalamai, meaning local law—applied as personal laws to Tamil inhabitants of the Jaffna province.
Both Thesawalamai and Kandyan law are based on local customs and practices. During the Dutch administration of Sri Lanka (1654–1796), the laws of the Jaffna Tamils were codified, and this codification gained the seal of approval of the British, who translated and promulgated the Dutch code in consultation with the Jaffna Tamil community leaders. Thesawalamai, thus, has a statutory starting point, although unwritten custom and case law are equally valuable sources of law. The British did not manage to create a code of the customs and usages of the Kandyan Sinhalese, but several statutes were passed to clarify and state some parts of Kandyan law. Legislation has played an important part in clarifying, modifying, or replacing Thesawalamai and Kandyan law.
Muslim law, the third personal law of Sri Lanka, differs from Thesawalamai and Kandyan law at least in two aspects. First, the application of Muslim law depends on neither belief in Islam nor any racial consideration. The vast majority of Muslims are descendants of Muslims from the Middle East, Malaysia, and coastal areas of southern India, and it is believed that they intermarried with natives (mostly Tamils). Muslim law has no territorial element. Thus, whereas the Jaffna Tamils or Kandyan Sinhalese will cease to be governed by their personal law if they lose their Jaffna or Kandyan domicile, respectively,2 Muslim law follows a Muslim wherever he or she moves in Sri Lanka.3
Second, Muslim law, being inextricably linked to the religion of Islam, may rightly be regarded as a received legal system. As distinguished from Kandyan law and Thesawalamai, Muslim law is indigenous only to the limited extent that Muslims of Sri Lanka have developed customary practices that are unrelated to the general principles of Islamic law. To the extent that general jurisprudence of Islamic law governs the Muslims of Sri Lanka, Muslim law can be recognized more as a received system than as an indigenous law.
Roman-Dutch law and English law are described as received legal systems first because they were introduced by foreign rulers of the island and second as a way to highlight how they differ from the three laws that are native—native in the sense that they had long been established in Sri Lanka at the start of Western domination.
Muslim Law in a Secular State
The purpose of this chapter is to examine how, and how much of, Islamic law was received in Sri Lanka and the extent to which local customs and the general law of the land have made inroads into it. The chapter will also examine the role played by the legislature in developing and reforming it. An examination of case law also indicates much deference to Islamic law, though the judges were not unmindful of modernizing law. I will first give a broad-brush view of the place of Muslim law in the legal system of Sri Lanka and then examine two specific areas that illustrate the interaction between common law and Muslim law. These areas are the custody of minor children and the law of gifts.
The application of Muslim law concerning the custody of minor children highlights how judges trained in English law and Roman-Dutch law interpreted what appeared to be rigid principles in a way to reach a result that would, at least to an appreciable extent, be consistent with the common law. In these cases, there is no blatant citation of English cases facilitating modification of the Muslim principles. Evident instead is a show of great respect to Muslim jurisprudence, while confidence is instilled in the community that solutions reached by judges are just and fair. Any modification of Muslim law was nonconfrontational and wholly defensible.
Muslim Law in Sri Lanka: An Introduction
Well before the time of the Prophet Mohammed, Persians and Arabs knew Sri Lanka as an important trading place. Islam found a receptive audience in the small Persian and Arab population in Sri Lanka. In later years, waves of Indian Muslims came to Sri Lanka, swelling the Islamic community. Many of these Muslims married Tamil women, and some others married Sinhalese women. Because of the deep religious consciousness of the Muslims, these women, who would otherwise have been governed by their native law or the general law of the land, became Muslims and subject to Muslim law. The Muslim community grew as a distinct ethnic community—on religious lines and not racial lines—and continued to be governed by religious law, except where Muslims voluntarily adopted elements from the general law or a native law and where legislation, and to a limited extent judicial decisions, replaced Muslim law.
The religion of Islam came to Sri Lanka, bringing with it rules from the traditional sources of Islamic law. The Dutch courts recognized the application of Muslim law to the Sri Lankan Muslim community. Muslim law in Sri Lanka, just as Muslim law in India, consisted of Islamic jurisprudence as adapted to the local circumstances and added to by local customs of the Muslim community. When the Dutch prepared a code of Muslim law, it contained an outline of the main legal principles that the Sri Lankan Muslim community considered to be binding on them. In the early years of the British period, this code was translated into English, and in 1806, it was adopted by the governor in council. Before its adoption, the translated code was put to the local Muslim leaders for confirmation that it was a true reflection of their laws and customs. The code was not a comprehensive statement of Muslim law and continued to be supplemented by local customs and by reference to general Muslim jurisprudence.4 However, courts did not go so far as to say that the whole body of Muslim jurisprudence was applicable in Sri Lanka to supplement the code. Reference to general principles of Muslim law was permissible only when there was evidence that such principles had been adopted by local custom or when reference to general Muslim jurisprudence was needed to elucidate the meaning of a legislative provision.5 The application of Muslim law was in the hands of the ordinary courts of law in the early years of British administration, but in the early twentieth century, the British administration gave effect to a prevailing practice among Muslims to have their disputes settled by a Muslim priest or judge called the quazi. Legislative provision was made for the creation of quazi courts, and certain matrimonial matters were left exclusively in the hands of these Muslim judges. Space does not permit an examination of these tribunals; note that these tribunals followed insofar as possible judicial practices, including the adherence to precedent, in resolving disputes (see Cooray 2012).
For a better understanding of the interaction of common law and Muslim law, I will now examine two areas that are not within the exclusive jurisdiction of the quazi courts.
Custody of Minor Children: Muslim Law in a Common Law Wrapping?
Custody of minor children is an area that illustrates how Muslim law operates in a secular state. Without any statute codifying the Muslim law principles relating to custody, and without vesting of jurisdiction in custody matters in the Muslim quazi courts, the ordinary courts of Sri Lanka were given the opportunity to understand, evaluate, and apply Muslim jurisprudence to custodial disputes in the context of the general law of the land on the subject. The response of the judges of ordinary courts of law, who had been trained in the English legal tradition, to Muslim law of custody has ranged from bemusement to respect.
To understand how judges of ordinary courts of law dealt with custody disputes among Muslims, one must appreciate the differences between Muslim law on the one hand and Sri Lanka’s common law—an amalgam of the Roman-Dutch law and English law—on the other hand.6
Muslim law is based on the idea that the father has overall responsibility for the welfare of, and authority over, the child. However, children of tender years do benefit from maternal love and care. Thus, Muslim law draws a distinction between guardianship and custody. The father has guardianship of the child, and after the death of the father, or when he is unfit to be guardian, his power devolves on an appropriate male relative of his. The mother has no powers over the child, and her responsibility is to provide loving care to her minor children. When a family is divided, the custody of children of tender years belongs to the mother, and when she is dead or is unfit to the task, it passes on to her female relatives. The father retains guardianship and parental control over the child. Thus, the father makes all important decisions regarding the minor child, such as decisions related to education. His parental power comes with responsibilities, mainly the duty of support.
In Muslim law, the end to a marriage is not simply a dispute between the father and mother. If the mother is disqualified for purposes of custody, custody does not automatically pass to the father. The right to custody remains in the family of the mother, and her mother or sister is regarded as the appropriate person to care for the child. Custody is awarded to the father only if circumstances compel the judge to disregard the preferential right of the mother and her relatives.
The Roman-Dutch law position is that, in a divided family, the father has a preferential right to custody, and in a dispute between a natural parent and a third party, the natural parent has a preferential right. Thus, the father has both custody and guardianship over minor children. However, if the court grants custody to the mother, she also gets the powers of guardianship of the child, with the father remaining responsible for maintenance of the child. The preferential right of the father may be replaced if strong evidence is shown that it would be greatly detrimental to the interests of the child to remain with the father.7 It is because of the English influence that the welfare and interests of the child are the paramount consideration in all custody disputes.8
To an English-educated judge, the Muslim law of custody would seem unacceptable, especially in relation to a dispute between female maternal relatives of the child and the natural father. Although English and Roman-Dutch law would prefer the father as custodian, the Muslim law favors female maternal relatives. This judicial dilemma is clearly illustrated by an early decision of the Supreme Court in re Sego Meera Lebbe Ahamado Lebbe Marikar,9 where the father sought to recover the custody of his young son from the maternal grandmother with whom the child had been living since his mother’s death. Both judges who heard the case were bemused that in a dispute between a natural parent and another person, preference is to be given to the other person. Justice Clarence said, “The father’s right is certainly the most consonant with justice and convenience: and in my opinion we should uphold the father’s right, unless it clearly appears that there is law to the contrary, and of that I am not satisfied.”10 Justice Dias said, “[T]he rule, or the alleged rule, of Mohammedan Law now put forward on behalf of the grandmother is opposed to all modern ideas of the relative position of parent and child. But if there is such a law, we are bound to carry it out.”11
In re Sego Meera Lebbe Ahamado Lebbe Marikar,12 the Supreme Court justices not only expressed their dissatisfaction with the Muslim law that subjugates the father’s right to that of a maternal relative, but also found a way not to apply it, even though the parties were Muslims who were to be governed by Muslim law and not the common law of the land. The justices did so by holding that the Muslim law relating to custody disputes was not part of the Muslim law of Sri Lanka. In their view, that part of the Muslim law relating to custody of minor children had not been introduced by legislation or received by local custom. As the Supreme Court had said in a 1916 case, only those parts of Muslim law that have been received and followed in Sri Lanka have force of law:
What is the Muhammadan law which prevails in Ceylon? It cannot for one moment be pretended that the whole body of Muhammadan jurisprudence obtains currency here, for the obvious reason that all law must derive its sanction by virtue of legislation or custom or judicial decisions. [The whole body of] Muhammadan law stands devoid of any sanction here, because Muhammed had no right to impose his laws on the inhabitants of any British territory.13