Timely and welcome legal publication

The Board of Quazis’

Law Reports

Muslim Women’s

Research and Action Forum

Review Justice Saleem Marsoof, PC, Judge of the Supreme Court of Sri Lanka

LAW: The Board of Quazis’ Law Reports is the latest publication of the Muslim Women’s Research and Action Forum (MWRAF), but it differs in content and purpose from all the earlier publications of MWRAF, as it is a law report on Muslim matrimonial law. Its value is enhanced by the fact that it comes at a time when the need for such a report was being felt very acutely.

MWRAF, which had its beginnings in 1978 as an informal forum for Muslim women who met occasionally to discuss critical issues they were faced with, was formally established in 1986 with the mandate of creating greater awareness of gender issues and empowering women to realise their full potential.

MWRAF has published several books including Asgar Ali Engineer’s Equity, Social Justice and Muslim Women’, Ramani Muttetuwegama’s Parallel Systems of Personal Law in Sri Lanka, Chulani Kodikara’s Muslim Family Law in Sri Lanka: Theory, Practice and Issues of Concern to Women and the present reviewer’s The Quazi Court System in Sri Lanka and its impact on Muslim women.

In publishing a law report such as the one being reviewed, MWRAF is seeking to fill the lacuna created by the demise of the Muslim Marriage and Divorce Law reports, which has not been published since 1997.

Before looking at the report published by MWRAF, it is necessary to say something about its predecessor - the Muslim Marriage and Divorce Law reports.

Driven by the zeal of Al Haj M. Markhani, Attorney-at-Law, who was a well-known advocate with an extensive practice, who had gained judicial experience as a magistrate in Zambia and also served in Sri Lanka as the Chairman of the Board of Quazis, the Muslim Marriage and Divorce Law Reports was published in 1962 as a collection of important decisions of our courts relating to Muslim marriage, divorce, maintenance and other matrimonial matters.

This volume contains reports of cases decided by our courts between 1834 and 1932 including some reported in the older law reports by then out of print, such as Marshall’s Judgments, Morgan’s Digest, Austin’s Reports, Vanderstraaten’s Reports, Grenier’s Reports, Browne’s Reports, Tambyah’s Reports and Ramanathan’s Reports.

This was followed by a second volume published in 1965 which covered judicial decisions up to 1942 including those of the Board of Quazis which commenced functioning in 1937. The third volume of the report contained judgments pronounced between 1942 and 1953.

The fourth volume published in 1972 brought the cases up to 1960, and the majority of these arose under the current Muslim Marriage and Divorce Act No. 13 of 1951 (Cap. 115) which became operative on August 1, 1954.

The fifth of these volumes was published in 1977, and it incorporated reports of decisions made by our courts between the years 1961 to 1970. The sixth and the last volume of the Muslim Marriage and Divorce Law Reports came out in 1997 and covered the period from 1971 to 1990.

It is unfortunate that Advocate Markhani could not find a successor to continue his good work under its well established title and in its original form, and the publication of the report has now been discontinued, causing tremendous difficulties to practitioners, judges, researchers and members of the public who were thereby deprived of easy access to judicial decisions in this important field of law.

Efficient law reporting is the lifeblood of a virile legal system such as ours which has been enriched by many legal traditions. Although the Common Law of Sri Lanka has been built upon a Roman-Dutch Law foundation, and necessarily shares characteristics of the ‘civil law system’ prevalent in countries such as Holland, France and Germany, it has been nourished by the English Common Law, which recognises case law as a source of law and adopts the doctrine of stare decisis or binding precedent.

This has made law reports, the most important tool that is available to a legal practitioner, judge, academic or law student. The Sri Lankan legal system has been further enriched by principles of Shari’at Law introduced into Sri Lanka by the Arab and South Indian traders who were predominantly Muslims.

These principles were embodied in the code entitled “Bysondere Wetten Aangaande Mooren off Mohametanen en andere Inlandsche Natien” which was introduced by the Dutch, based on the laws and customs prevalent among the Musalmans of Batavia (now Jakarta) in Indonesia and adopted by the Muslim community of Colombo.

The said Code was translated into English and proclaimed as the Mohammedan Code of 1806. However, as a result of agitation by the Muslim community led by personalities such as Justice M.T. Akbar, the first Muslim Judge of the Supreme Court of Sri Lanka, the provisions of the Code relating to marriage and divorce were replaced by the provisions of the Muslim Marriage and Divorce Registration Ordinance of 1929 which was the predecessor to the Muslim Marriage and Divorce Act of 1951 which is now in force.

A salient characteristic of the Muslim marriage and Divorce Act of 1951 is that the validity of every Muslim marriage or divorce, as well as the status of every Muslim has to be determined by the Muslim law of the “sect” to which he or she belongs.

By Muslim law is meant, the laws and customs of the Muslims of Sri Lanka which is derived from four primary sources namely, the Holy Quran, Sunna or Traditions of the Prophet (PBOH), Ijma, which means the consensus of the Imams (Jurists) and Qiyas, which is the process of judicial reasoning through analogy.

Accordingly, a court which is called upon to decide cases coming before it has to apply Shari’at Law emanating from the above sources to decide questions relating to Muslim parties.

In making these decisions our courts have to be guided by the previous decisions of courts in similar matters, and law reports play an important role in making the wisdom of the past available for those who are called upon to decide the fate of parties coming before them.

As His Lordship Hema Basnayake QC, then Chief Justice of Ceylon stated in his foreword to the first volume of the Muslim Marriage and Divorce Law Reports.

“In our legal system judicial precedent plays an important part and for a due observance of the rule of stare decisis it is essential that the precedents of the courts and tribunals should be readily available.”

It is in this context that all Judges, Members of the Board of Quazis’, legal practitioners, academics and the public would welcome the publication by the Muslim Women’s Research and Action Forum of Volume I of the Board of Quazis’ Law Report containing cases decided by the Board of Quazis’ in the years 2001 and 2002.

As Al Haj S.M.A. Jabbar JP who is the current Chairman of the Board of Quazis states in his Foreword, the first volume of the Board of Quazis’ Law Report ‘contains some landmark judgements of the Board of Quazis” from the inception of his tenure as Chairman of the Board of Quazis in 2001.

The Report has been compiled by Mrs. Safana Gul Begum, Attorney-at-Law, for the Muslim Women’s Research and Action Forum, who in her “Editor’s Note” refers to the “immense difficulties” in collecting the orders made by the Board of Quazis from 1999 to the end of 2000 “as the records were not available”.

While this is the explanation given by MWRAF for not including the decisions made during this period in the first volume of the report, it is hoped that the relevant authorities will take note and trace the relevant records, as the non-availability of judicial decisions in a system governed by the doctrine of stare decisis is a serious issue.

The first volume of the Board of Quazis’ Law Report contains 26 decisions of the Board of Quazis. These decisions relate to marriage, divorce, paternity, maintenance, lying in expenses, mahr, kaikuli custody, enforcement orders and other procedural matters.

It contains a Digest, which classifies the cases reported in the volume into convenient headings for ease of reference. All judgements reported contain a head note which has been prepared with immaculate care to assist the reader.

However, it is quite remarkable that 25 out of the 26 judgments in this collection, are orders made by Al Haj S.M.A. Jabbar in his capacity as the Chairman of the Board of Quazis, and one judgement has been written by another member of the Board of Quazis, A.C. Abdul Latheef, Attorney-at-Law.

While it is not the function of a reviewer of a law report to comment on the quality of the judgements contained in it, it is quite legitimate to comment on the value of the report itself.

As it is, the first volume of the Board of Quazis’ Law Report is a very commendable effort to compile, amidst certain administrative difficulties, judgements of the Board of Quazis which performs a very important role in the judicial hierarchy of Sri Lanka as the appellate body to which appeals and applications in revision are made from the decisions of the Quazi Courts functioning in the various judicial zones in Sri Lanka.

It is hoped that the publication of this volume will not be a one-off matter, and will continue to posterity. It is the considered view of the reviewer that the title of the report, namely, ‘The Board of Quazis’ Law Report’ should not inhibit the inclusion of any noteworthy decision of the Quazi Courts as well as decisions of other courts that are relevant to Muslim matrimonial law.

Even decisions of importance published in other law reports such as the Sri Lanka Law Reports may be reproduced in future volumes of the Board of Quazis’ Law Reports, if they concern issues of Muslim family law.

While congratulating the Muslim Women’s Research and Action Forum for this very timely and important publication, it is also necessary to thank Karunaratne & Sons Ltd., for their quality printing, and the Humanist Institute for Development Corporation in the Netherlands (HIVOS) for sponsoring this volume.

I commend the publication to all practitioners, Judges, Quazis, academics, students and members of the public who wish to gain some insight into the workings of the Sri Lankan courts in deciding cases involving Muslim matrimonial matters.

Critical look at Sri Lanka’s foreign policy with Soviet Russia

Sri Lanka - Soviet Relations

A Study in Retrospect

Author: Prof. W.A. Wiswa Warnapala

Godage Publishers,

Colombo - 2007

Review: R.A.W. Ranasinghe

FOREIGN POLICY: Prof. W.A. Wiswa Warnapala, who is now the Minister of Higher Education is a distinguished Professor in Political Science. From his student days at the University of Peradeniya his performance inside the classroom as well as outside, had been well recognized by senior academics like Professor Lerski who were his teachers in the University.

This sound initiation into academic as well as student politics made him a rebel against conservative practices of the ruling classes of the time in Sri Lanka.

His successive achievements obtained after his graduation in 1964, i.e. Master’s in Public Administration from the University of Pittsburg, USA in 1967, Ph.D. from the University of Leeds, UK in 1970, made him the Professor and the Head of the Department of Political Science of the University of Peradeniya.

Thus by virtue of his academic credibility, which helped him to climb the top of the ladder of the university system, he was invited by several prestigious universities in the USA, UK, Belgium, Australia and India to serve as a Visiting Professor.

diplomatic career

As a key figure of the Sri Lanka Freedom Party during Mrs. Bandaranaike’s government, he was appointed the Counsellor to the Sri Lankan Embassy in Moscow from 1974-1977. The experiences and awareness, which he gained during his diplomatic career were immensely useful to him in his academic life.

The outcome of such experiences is the present work on “Sri Lanka-Soviet Relations - A Study in Retrospect”, for which I am privileged to write a review.

Prof. Warnapala has used his academic talent and intellectual professionalism in this work, which has been produced to mark the 50th anniversary of the establishment of diplomatic relations between Sri Lanka and Russia. It is this relationship which has been analysed in this book.

The author has organised his experiences and academic talents in eight chapters in his book, beginning with the early periods of Sri Lanka-Soviet relations and the present economic, trade and cultural relations and its developments and prospects.

More emphasis has been made by him to make an analysis of the signficiance of Sri Lanka-Soviet relations under Mrs. Bandaranaike’s government, during which period relations reached the peak level.

Turning point

In the introductory pages of his book, the author points out that the retrieval of Sri Lanka-Soviet relations during the late 1950s under the late Prime Minister Mr. S.W.R.D. Bandaranaike was a turning point of the Sri Lanka (Ceylon) Foreign Policy.

Until then, Sri Lanka continued an anti-communist-western biased policy, which was a policy unique to the United National Party. Nevertheless, China-Ceylon Rice and Rubber Agreement signed in 1952, as the author points out, was out of character as far as the UNP foreign policy was concerned.

The main objective of the Agreement from the Sri Lankan government point of view was trading and not an extension of Sri Lanka’s foreign policy towards the socialist bloc. As the author clearly points out that the main cause which directed the Sri Lanka foreign policy towards a western bias was the terms of the British-Ceylon Defence Agreement signed in 1957 and the authority of the Governor-General over the foreign affairs and defence.

However, the establishment of Ceylon’s relations with the socialist bloc especially with the Soviet Union by Mr. Bandaranaike and its continuation and strengthening by Mrs. Bandaranaike was an important turn taken by the Sri Lankan foreign policy.

non-aligned policy

It was not, as the author points out, nearly a follow-up of the non-aligned policy but also an extension of economic and trade relations with western world. On the other hand, from the author’s points of view, such an initiation was a sudden necessity for the country as a newly emerged nation in the third world.

However, Sri Lanka-Soviet relations were not only a formal economic and trading co-operation, but also a cultural exchange. These relations, as the author argues by quoting some scholars who had been involved in research on Buddhism and Ceylonese culture were not random incidents, but a great leap of the links that existed.

The author in the third chapter highlights the rapid growth of the industrial sector of the country by virtue of the terms of the bilateral agreements signed by both governments. For instance, Iron and Steel Factory at Oruwala, Tyre and Tube Factory at Kelaniya, Flour Milling Plant and a Grain Elevator in Trincomalee and Sugar Cane Plantation at Kantale.

Political development

Soviet-Sri Lanka relations, in addition to the economic and trading development of the island, as the author says, had a great impact on political development of the country. For instance, the influence of the great October Revolution in 1917 over the nationalist movement in colonies was vital in changing their strategies and tactics of struggles against western imperialism.

Making this as a point Peter Keuneman, as the author quotes, has said - “The influence of Great October Revolution on Sri Lanka (then Ceylon) has been as powerful as its influence on the other former colonial countries.”

young socialists

Thus young socialists like S.A. Wickremasinghe who were inspired by Soviet Communism were able to enter into the legislative council of the colonial government, as the first leftist in Ceylon and later they co-operated in forming the LSSP in 1935 which was a party of coalition of different ideological groups.

This caused to make a rift in the LSSP and resulted in forming of the Communist Party of Sri Lanka by a pro-Soviet group.

They were the people who formed “the friends of the Soviet Union”, which, as the author says, was the foundation of Sri Lanka Soviet relations in a formal way. However, the Communist Party in Sri Lanka could not ensure its survival within the electoral politics due to its over adherence to concepts rather than practices.

The most striking feature of this work of Prof. Warnapala is the arrangement of chapters which displays his intellectual rigour.

In that sense, it is not an exaggeration, if I say that the book on Sri Lanka-Soviet relations is an important source for researchers as well as students who are interested in Sri Lanka’s foreign policy; trade and economic relations with socialist bloc and the origin of political party system in Sri Lanka and by and large Sri Lanka’s relations with the Soviet Union.

Annexure

Four annexures added top the book include topics such as the list of the Executive Committee of the Soviet-Ceylon Friendship Society, visit of Sri Lankan Mission to the Soviet Union, speeches made by Prime Ministers of both governments and joint Communique issued by two countries. However, these topics including the random diaries in Moscow as far as my concern are supplementary readings in order to confirm the ideas presented by the author.

Finally, I would like to mention here that if the author had drawn his attention to devote a separate chapters on “some elements of Ceylon’s foreign policy with the cold war’s era,” and “the impact of the collapse of Soviet Union on Sri Lanka’s position as a third world country,” then it would have made the text more useful for students who are reading Sri Lanka’s foreign policy.

This work is an important source for those who are involved in research or reading on Sri Lanka’s foreign policy.

The writer is the Senior Lecturer in Public Admin. & Public Policy, University of Peradeniya.

Geology of Sri Lanka presented in a nutshell

Lakbima Bhu Paramparaha Pradhana Bhu Nidhi

Author: Ariyawansa Jayaweera

Godage Publishers, Colombo 10.

58 pp

Price: Rs. 200

Review: Professor C.B. Dissanayake

GEOLOGICAL HISTORY: This booklet on the geological history and the geological formations of Sri Lanka is a welcome addition to the sparse literature on the subject, particularly in the Sinhala medium.

Even though much research has been carried out by local and foreign earth scientists on the various aspects of the geology of Sri Lanka, school children and interested laymen have not had the opportunity of obtaining the relevant information in a simplified and easily understood form.

The author, Ariyawansa Jayaweera has, in 58 pages been able to outline the most salient features of the geological history and lithology of our country, in a most readable form. School children will now be able to comprehend the nature of the different types of rocks, their formations and their distributions quite easily. The easy and lucid style maintained throughout the book is most commendable.

The book has been dedicated to one of Sri Lanka’s best known geologists, the late Prof. P.W. Vitanage. Much of the contents of the book have been carefully summarised from the invaluable work of Professor Vitanage.

Pioneering work

The pioneering work of this great geologist has withstood the test of time and the early explanations and diagrams are reproduced with reasonable clarity. It must be said that what Professor Vitanage prophesied decades ago is now being proved and his geological vision was indeed remarkable. The early diagrams as presented in this book will certainly be of great use to the student.

The first few chapters deal with the original views of some of the early geologists of Sri Lanka such as Ananda Coomaraswamy, J.S. Coates, D.N. Wadia and L.J.D. Fernando.

The arguments and counter arguments against the hypotheses are lucidly summarised. the rather complicated subject of rock formations and their origin has been dealt with in a very simple manner.

The attempt to describe the major rock types and the influence on the diversity of landscapes has been largely successful. The central highlands of Sri Lanka is indeed a geological paradise and the influence of the geological formations on the different river basins and their geomorphology has been very well illustrated.

Geological structure

Even the geological structure of Sri Lanka, an immensely complex field of study, has, following Professor Vitanage’s ideas, been simplified and made quite comprehensible.

Emphasis has also been placed on the geological evolution of the country and its position in the Gondwana super continent. The age relations of the lithological formations, the theories on peneplanation, arena distribution etc have been admirably dealt with.

The author who had accompanied Professor Vitanage in his extensive field surveys across the length and breadth of the country, has educated himself very well in the subject.

His ability to impart this knowledge to the Sinhala medium school children and laymen is certainly laudable and has enriched the literature.

This book serves as an example to other media personnel interested in scientific studies to take up the publication of simple books with the guidance of those well entrenched in the field.

The author, Ariyawansa Jayweera, as a journalist has indeed made a useful contribution. He deserves our praise.

The writer is Senior Professor of Geology University of Peradeniya.