Review on Historical Development of Law of Evidence in Sri Lanka

INTRODUCTION

The Evidence Ordinance is based on the Indian Evidence Act 1872 with some important differences. The earlier history of our legislation begins with preamble to Ordinance No. 6 of 1834, which recites that since the proclamation of the 23rd September 1799, the English rules of evidence “have been gradually introduced and are generally adhered to within this Island although not expressly established by positive enactments”

The present evidence law in our country is governed by the Evidence Ordinance No.14 of 1895 which is based on the Indian evidence act. But prior to the enactment the evidence law of the country was provided by the English law principles. Time to time since conquer the land they have enacted certain ordinances to introduce legal principles in relation to evidence law. Except for that English judges in our courts have referred to their mother land principles when deciding cases.

Sri Lanka has a legal system which is an amalgam of English common law, Roman-Dutch civil law and customary Law. Though Roman-Dutch law is the common law of the country, English law has much greater influence on the laws of Sri Lanka. Law of Evidence is another an area which English common law has highly influenced with.

In RA de Mel v. Haniffa, it summarizes the early history of the evidence ordinance. In its verdict it stated, “The prior history of the rules of evidence and of method applicable to criminal cases in this country. The preamble to Ordinance No. 6 of 1834 (which was afterward repealed) presents that since the Proclamation of 23rd September, 1799, the English rules of evidence “have been gradually introduced and are generally adhered to within this Island although not explicitly set up by positive enactment”. Section 1 in like manner pronounced that these rules should proceed to be the law of Ceylon in civil and criminal cases but when altered or modified by express enactment”. From that point, Ordinance No. 3 of 1846 repealed the prior Ordinance and made “better provision for the application of the English rules of evidence to the Colony”. Again, Ordinance No. 9 of 1852 presented certain amendments to the rules of evidence, and section 4 explicitly ordered that, in understanding with the law at that point getting in England, “no accused person shall be competent or compelled to provide evidence for or against.

At last, the present Evidence Ordinance (Chapter 11) came into operation in 1895. Section 120 (6) expelled for the first time the incapacity which prevented an accused individual from giving evidence on his own behalf, but the rule against his compellability as a witness against himself was not relaxed. The Evidence Ordinance presently grasps the rules of evi¬dence applicable in this country in civil as well as criminal proceedings, and section 100 gives that- “the English Law of Evidence for the time being” shall decide any question “not provided for”.

The evidence ordinance is said to be based on the Indian Evidence Act while the English rules of evidence had been gradually introduced and were generally adhered to the law of Evidence in Sri Lanka. In this paper it will review aforesaid assertion in perspective of the historical development of the law of evidence in Sri Lanka under 9 parts as follows.

Part I: Ordinance No. 6 of 1834

Part II: Ordinance No. 3 of 1846

Part III: Ordinance No. 9 of 1852

Part IV: Introduction of Indian Evidence Act

Part V: Background of introducing Evidence to Sri Lanka

Part VI: Present Evidence Ordinance

                              Repeal of pre-existing laws

                              Differences between the Indian Act and Sri Lankan Ordinance

                              Application of section 100

Part VII: Current application of English law principles

Part VIII: Recent development in law of evidence in Sri Lanka

PART I – Ordinance No. 6 of 1834

Such effort for the first time can be identified in the Ordinance No. 6 of 1834. 1834 ordinance impliedly set out English rules of evidence adhered to within the Island. The preamble to the Ordinance stated that, “the English Rules of Evidence have been gradually introduced and now generally adhered to …..although the same have never been expressly established by positive enactment”. Moreover, section 1 of the Ordinance recites that English law   of evidence ‘shall continue to be the law of Ceylon in civil and criminal cases except when altered or modified by express enactment’. In this section it use the term shall rather than may, which sets a mandatory obligation to refer to English law of Evidence in civil and criminal cases. The section also had open the gates for future modification and give precedence to such law over the 1834 Ordinance. Thereby drafters believed that 1834 Ordinance is not a comprehensive and it has to be amended or repealed.

PART II – Ordinance No. 3 of 1846

In 1846 by an express enactment it repeal the 1834 Ordinance. This ordinance was drafted with a purpose of making, “better provision for the application of the English rules of evidence to the colony”.  Ordinance No. 3 of 1846 made two significant changes to the Evidence law in Sri Lanka. Firstly, it repealed the Ordinance No. 6 of 1834 and establish better provisions than it. Secondly, it quash application of Roman-Dutch law for evidence law in Sri Lanka. This has been expressly stated in the Section 1 of Ordinance No. 3 of 1846. Section 1 made the English law of evidence as administered in the courts in Ceylon unless otherwise it has been specially excluded. Therefore, this Ordinance expressly recognizes the English law of evidence to be use in the court proceedings and also it expressly revoke the application of Roman-Dutch law rules affecting evidence. This Section is very important as it prevents confusions would have arisen which rules to be applied for certain questions on Evidence. Because Sri Lankan legal system based on both Roman-Dutch law and English law. Therefore, confusion arises as to what legal system applies for Evidence law. This confusion was resort by enacting this provision. As the criminal law and criminal procedure of the country is also governed by English law it is more beneficial to use English law itself for the Evidence law as well.

PART III – Ordinance No. 9 of 1852

After 6 years, Ordinance No. 9 of 1852 introduces certain amendments to the English law of evidence. It follows the similar intention meant by the Ordinance No. 3 of 1846, to provide better provision for the application of the English rules of evidence to the colony. With that intention ordinance introduces further amendments to the existing English law regulations.

Therefore, evidence in the country has been slightly changed over the last few decades. Except for one or two changes there was no such considerable or comprehensive set of rules to govern the evidence law in the country.

PART IV – Introduction of Indian Evidence Act

Meanwhile, in 1872 British introduced The Evidence Act in India. With that enactment it establish certainty over the evidence law in India. The authorization and selection of the Indian Evidence Act was a way softening legal measure presented up India, which changed the whole arrangement of ideas relating to acceptability of confirmations in the Indian official courtrooms. Until that matters regarding evidence law was

PART V – Background of introducing Evidence Ordinance to Sri Lanka

Due to the success gain from such short period, British intended to introduce similar enactment for the Sri Lanka. In 1793 Governor Gregory stated his intention to bring bill to consolidate and amend the law of evidence in Sri Lanka. This was a positive step for the development of evidence law in the country. Because at that time there was not written legal provisions to deal with evidence law in Sri Lanka. Questions were determined by reference to English Law principles. But it wasn’t enough to fill the lacuna occurred with lack of written legal provisions.

Legal experts also believed that evidence law has to be consolidate and Indian Evidence act is the best reference to be made. In 1879 Chief Justice (1877-1879) Sir John Budd Phear suggested that the Indian Evidence Act with slight changes could be adopted for Sri Lanka.

PART VI – Present Evidence Ordinance

Indian Evidence Act was drafted by Sir James Fitzjames Stephen and himself was asked to draft the bill to enact for Sri Lanka on Evidence. The draft bill gets the governor’s approval on 1st of January 1896. The Evidence Ordinance has been amended time to time but it does not make significant changes to the core of the original enactment.

Repeal of pre-existing laws

The Evidence Ordinance stated that “all rules of evidence not all rules of evidence not contained in any written law so far as such rules are inconsistent with any of the provisions of this Ordinance, are hereby repealed”

This section clarify the application of Evidence Ordinance No. 14 of 1895 in regard to the evidence law in Sri Lanka. Section 2 simply stated that, Ordinance itself should use for the matters regarding to evidence law in Sri Lanka. This section intentionally neglect the application of English law principles on evidence law in the country. This is a positive move for the development of evidence law in Sri Lanka. With this provision it make sure evidence law of the country is governed by a legislation passed in the country, not by any other foreign law. Also it prevent any doubt may occur from the application of two systems. Now with Section 2(2) it clearly states that Ordinance intervenes for any ambiguous situations.

Although this provisions simplify the application of evidence law and neglect the application of English Rules, it causes certain difficulties in it. One such difficulty is expressed in the Chandrasekara’s Case. In this case Soertsz J, held that,” by the time our Evidence Ordinance came to be enacted, we had followed the English Law of Evidence for nearly a century, and modes of thought and speech acquired during the long association have persisted in our courts even after we had received a code with a different orientation”. It reveal the difficulty in establishing our own legal principles in evidence law. Because by the time our Evidence Ordinance came to be enacted, we had followed the English Law of Evidence for approximately a century, and modes of cerebrated and verbalization acquired during the long sodality have persisted in our courts even after we had received a code with a different orientation. Therefore it has been bit difficult to judges to get away from those English principles at once.

However, this provision make sure to have our own enactment to govern evidence law.

Differences between the Indian Act and the Sri Lankan Ordinance

Although our evidence ordinance based on the Indian act there are certain significant differences between the two laws.

Section 30 in our evidence ordinance it stated that Confession made by one of several persons tried jointly for the same offence shall not take into consideration such confession as against such other persons. But it has been opposite in Indian act as Court may take into consideration such confession against such other persons. According to section 100 in our ordinance it allows the application of English law in a question of evidence arises not provided for by our law. But in Indian Act there is no such provision. Apart from that there are many other differences between our law and Indian Evidence law. Such differences may find in the sec. 2(1), sec. 2(2), sec. 17(2), sec.25-27A, sec. 30, sec. 45 and 73, sec 57(14), sec. 68, sec.74, sec.85, sec.95 (13), sec. 100 (14), sec.112 (15), sec.113 (16), sec. 114(17), sec. 117(18), sec. 120, sec. 122, sec. 123, sec. 125(22), sec. 130(23), sec. 131(24), sec. 132(25), sec. 138(26), sec. 14(27), sec. 143(28), sec. 145(29), sec. 146(30), sec. 153(31) in our ordinance.

Application of section 100

Reviewing the application of the section 100 is important in understanding the development of the evidence law. Section 100 is about referring to the English Law when our ordinance is not provided regulations. This section impliedly bind our evidence law with the English Law. Initially English law was considered and referred when the ordinance is silent. As GL Pieris pointed out English has been in our evidence law even before the ordinance was enacted. Therefore the practice continues with the judges to refer to their familiar law of English law when ordinance does not provide legal regulations to questions in evidence.

Old view on section 100 is that ordinance should understand against the background of the English law and its principles. This view was supported in the Attorney-general v. Rawther.

In present view it believe that ordinance is a complete code and English law may refer only to supplement evidence law wherever our law has not set out provisions. This view was supported by the R v. James Chandrasekera

PART VII – Current application of English Law principles

Section 100 of the evidence ordinance is clearly stated that English law is applies only on instances where a question of evidence arises not provided by the ordinance. Although provision expressly stated that, there are certain practices where courts have persistent on English rules. One such example is dock statements.

Recently in Sil Redi case former Secretary to the President Lalith Weeratunge makes a dock statement. On what legal basis an accused could make a dock statement? There is no legal basis indicate on the Evidence Ordinance allowing the accused to make a dock statement. Then how could the High Court Judge, Gihan Kulatunga allow the accused to make the statement? Simply by referring to the English law principles. This clearly illustrate the fact that still we are using English law practices in our evidence law.

PART VIII – Recent Development in law of Evidence in Sri Lanka

The most recent development over the evidence law in Sri Lanka is the Evidence (Special Provisions) Act No. 14 of 1995. It was an attempt to up-date the evidence law in the country. The entire world is been digitalized and almost everything is done through the computers and mobile phones. Therefore, this special provision recognized the computer evidence as a valid evidence in the court proceedings.

CONCLUSION

Law of evidence is important are in both civil and criminal proceedings. This important law in Sri Lanka was initially designed with English rules and principles from the time British acquire the country. Time to time they enacted several legislations to provide better provisions for the application of the English rules of evidence to the colony. Meanwhile they introduce Evidence Act for India with the experience of its success, rulers decided to introduce similar legislation to Sri Lanka. The same draftsman who drafted the Indian Evidence Act drafts the legislation for Sri Lanka. Therefore, our evidence law was based on Indian Evidence Act. But still there are some significant differences between this two legislations. Present Evidence Ordinance repealed all pre-existing laws and clear out the confusion in law. Another important provision established in the present legislation is the section 100 which provides for the application of English principles in case of a casus omissus. But there are some English law principles practiced in our courts though there are no casus omissus such as taking dock statements from the accused. The most recent development over the evidence law in Sri Lanka is the recognition of computer evidence as a valid evidence in the court proceedings.

REFERENCE

Books

1. Coomaraswamy ERSR, The Law of Evidence (with special reference to the Law of Sri Lanka Volume I) (2nd edn, Stamford Lake (Pvt) ltd , Pannipitiya)
2. Nilantha H, ශ්රි ලංකාවේ සාක්ෂි නීතිය (Evidence Law In Sri Lanka) (Pahan Publication 2010)
3. Peiris GL, The Law of Evidence In Sri Lanka (4th edn, Stamford Lake (Pvt) ltd , Pannipitiya)
4. Tambyah N, The Legal System of Ceylon in Its Historical Setting (EJ Brill 1972)

Case

1. Attorney-General vs. Rawther (1924) 25 N.L.R. 385
2. RA De Mel vs. Hariffa (1952) 53 NLR 433
3. The King vs. Chandrasekera (1942) 44 NLR 97

Legislation

1. Evidence (Special Provisions) Act No. 14 of 1995
2. Evidence Ordinance No. 14 of 1895
3. Ordinance No. 6 of 1834
4. Ordinance No. 3 of 1846
5. Ordinance No. 9 of 1852

Newspaper Articles

1. Sooriyagoda L, ‘Lalith Weeratunga makes Dock Statement in Sil Redi Case’ Daily News (15 February, 2017)