There were justifiable and arbitrary reasons used in the 19th and early 20th centuries to restrict the application of Roman-Dutch law. Since both English and Roman-Dutch laws are foreign systems to Sri Lanka, the choice in a particular situation should be genuinely selective and pragmatic.
In the case Of Samed V Segutamby, Jayawardena A. J. said the proclamation of 1799 established the RDL as it subsisted under the ancient government of the United Provinces as our common law, and the presumption is that every one of those laws, if not repealed by the local legislature, is still in force. However, the law reports of Sri Lanka contain many instances where English principles other than those which had been incorporated by statute were referred to and formed the basis of judicial decisions.
The judiciary became conscious of its obligation to administer the prevailing laws. Thus, they attempted to justify their resort to English law in derogation of the laws they were bound to administer. Some of such justifiable excuses are as follows.
I. Justifiable use of English law
The Roman-Dutch law does not provide for the situation which confronts the courts (De Silva v Casim). The rules peculiar to the conditions of life in Holland are not a part of the law of Sri Lanka (Ramasamy v Tamby). Roman-Dutch law is similar to English law (Wright v Wright)
The Roman-Dutch law should be adapted to suit the circumstance of modern life by reference to English authorities, and the courts have adopted and acted only upon so much of the Roman-Dutch law as is suited to the circumstance in Sri Lanka (Noordeen v Badoordeen)
There are also other methods of judicial incorporation which are more arbitrary.
It had to be proved that the courts applied a Roman-Dutch rule relied upon by a litigant during the Dutch period. This was impossible because the records were in the Dutch language. The English had been applied because the Roman-Dutch rule was obsolete. (Silva v Balasuriya)
The salutary character of the English rule. (Silva v Balasuriya). When the parties agreed to be governed by English law. (Pless Pol v de Soysa) That the common sense of English law knows little of the casuistical subtleties which are to be found in the Roman-Dutch authorities. (Francisco v Costa) That is where the Dutch jurists disagree that the Roman-Dutch law may be disregarded.
(Ramasamy v Tamby)
Leave a Comment