Abstract:
This paper discusses how the British judges created communal divisions in Sri Lanka
during the colonial rule through their decisions. The British colonial rule was established
in Ceylon after capturing in 1796 the maritime areas hitherto held by the Dutch. The
whole Island was brought under their rule only in A.D.1815 after major military offensives
between the national patriotic forces and the invading colonial army. However, after
major rebellions against the British colonial rule in 1818 and 1848, Ceylon regained her
lost pride and sovereignty with the grant of dominion status in 1948.
Nevertheless Sri Lanka became a fully Sovereign and Independent Republic only in
1972. The highest appellate court in Sri Lanka until 1972 was the Privy Council, which
heard our appeals in Britain. During the period that spans from 1796 to 1972, the British
judges heard our cases and in particular the judgments delivered by them during the first
50 years of the British rule very clearly reflect ‘divide and rule’ considerations that were
taken into account in forming these judgments.
This paper intends to critically analyze those decisions with a view to understand how
the British colonial judiciary interpreted indigenous laws, customs and values to justify
and fortify their rule in Ceylon by offering illogical constructions and interpretations to
those indigenous laws thereby creating divisions among the different communities in
Ceylon.
Accordingly the paper will discuss the following areas: Restricting the applicability of
Kandyan law; the law that was applied to the entire Island to certain areas in the
Kandyan provinces thereby transforming it to a territorial law; Exclusion of the
Europeans and other inhabitants from the application of Kandyan law to transform it into
a mere personal law; Narrow interpretations given to the customary rights relating to
land inheritance, marriage, and other civil aspects for the purpose of making division
between low country Sinhalese, up-country Sinhalese and Tamil inhabitants in the
Northern part of the country; The paper will discuss some landmark case decisions such
as Re Carshow v Nicole, Williams v Robertson, etc. The paper will conclude with the
implications of decisions on the present national issue and what next should be done
judicially to put record straight.
