A new sign-post in the private international law landscape – Conflict of Laws

This publish was written by Rose Wijeyesekera, Professor of Personal and Comparative Regulation, Chair / Division of Personal and Comparative Regulation – School of Regulation, College of Colombo

Introduction

Sri Lanka (previously often known as ‘Ceylon’) is an island within the Indian Ocean, and is house to a complete inhabitants of 21,763,170, consisting of Sinhalese 74.9%, Tamils 15.4%, Muslims 9.3%, and 0.5% consisting of others comparable to Veddhas, Burghers, and gypsies.The authorized system of this island nation is a novel mix of native legal guidelines and the legal guidelines that have been positioned by the colonial powers from 1505 to 1947, when the nation gained independence. Since then, Sri Lanka has been a democratic republic and a Unitary State ruled by a structure. The Sri Lankan authorized system is based on Roman-Dutch legislation, inherited from its colonial previous underneath the Dutch, and English frequent legislation launched by the British colonial rulers. Other than these two, the authorized system incorporates components of Kandyan legislation (representing indigenous customs of the Sinhalese), Tesawalamai(customary legal guidelines of the Tamils of the Northern province of the nation) and Muslim legislation. These private legal guidelines apply in issues of private legislation, comparable to marriage, divorce, and inheritance, relying on the neighborhood to which a person belongs. All Muslims together with the sub-categories comparable to Moors and Malays, are ruled by Muslim Regulation of their private issues, whereas Kandyan Sinhalese (a minority of the Sinhalese who hail from “Kandyan Provinces” / the hill nation, are ruled by Kandyan Regulation. These customary legal guidelines bear a territorial and/or a non secular nature. Most of those legal guidelines are enacted, however some stay open leaving room for judicial interpretation. The courtroom system in Sri Lanka is structured hierarchically and is designed to make sure justice by means of a mixture of conventional and trendy authorized ideas. The system contains the Supreme Court docket on the apex, the Court docket of Enchantment, Provincial Excessive Courts, District Courts, Justice of the Peace Courts, and tribunals comparable to Labour Tribunals, Quazi Courts, and Mediation Boards.

The legislative sources of personal worldwide legislation are derived from a number of frameworks in Sri Lanka together with the Civil Process Code (1889), Firms Act, No. 7 of 2007, Arbitration Act No. 11 of 1995 and Mental Property Act, No. 36 of 2003. The Reciprocal Enforcement of Overseas Judgments Ordinance No. 41 of 1921 (REJO) and the Enforcement of Overseas Judgements Ordinance No. 3 of 1937 (EFJO) have been probably the most related within the sphere of reciprocal recognition, registration and enforcement of international judgments. But, these statutes, which have been enacted in the course of the British colonial period, have been restricted of their utility as they utilized solely in judgments regarding business issues. The lacunae created by the absence of authorized path with regard to the popularity of international judgments in issues regarding divorce, annulment and separation of spouses, was large in a socio-economic context the place outward migration has grow to be unprecedently massive in current instances.

Pre-legislative judicial activism  

In December 2023, the Court docket of Enchantment needed to face this lacuna, the place Champika Harendra Silva v. M.B. Weerasekara Registrar Basic and Others. The case involved a Sri Lankan-born couple who had registered their marriage in Sri Lanka and migrated thereafter to England, had obtained a divorce decree from a reliable courtroom in England. The divorcee man utilized to the Registrar Basic (RG) of Sri Lanka to register the divorce, nevertheless it was rejected on the idea that the divorce was obtained from a British courtroom, which based on the RG, was not a ‘competent courtroom’ underneath the Marriage Registration Ordinance of Sri Lanka. Upon rejection by the RG, the divorcee filed for a writ of certiorari pleading the courtroom to quash the RG’s rejection, and a writ of Mandamus recognizing the decree of divorce granted by the English courtroom. The courtroom made headlines when, by means of judicial interpretation, it granted each writs declaring {that a} international decree of dissolution of a wedding contracted in Sri Lanka is legitimate and effectual in Sri Lanka topic to 3 tips. (a) Such Court docket have to be in legislation vested with the jurisdiction in respect of the dissolution of a wedding and be the ‘Competent Court docket’ within the international nation; (b) the Events will need to have been residents of the international nation for an inexpensive time period; and (c) the events will need to have been correctly represented and took part within the authorized proceedings based on the legal guidelines and procedures of the international nation. The choice was progressive and well timed, and reiterated the need and urgency of legislative intervention in addressing this challenge of recognizing international judgments particularly with regard to matrimonial issues.

The legislature intervened promptly to deal with this authorized lacuna by introducing the Reciprocal Recognition, Registration, and Enforcement of Overseas Judgments Act, No. 49 of 2024 (RRREFJ). The Act is efficient from March 26, 2025, in respect of 53 international locations listed within the Schedule. It repeals each REJO and EFJO.

Restricted utility of Personal Worldwide legislation by means of REJO, EFJO, and Hague Conventions

REJO and EFJO, which have been launched to facilitate the cross-enforcement of international and Ceylonese (Sri Lanka because it was identified then) judgments, had proved woefully insufficient to cater to the nation’s ever growing cross-border transactions in each business and private issues. One of many fundamental causes was REJO’s restricted scope, because it catered to moderately uncomplicated financial issues arose in the course of the colonial instances. It didn’t handle matrimonial issues, maybe due to restricted abroad journey and restricted marriages between Sri Lankans and foreigners. It has additionally been subjected to criticism on account of stringent guidelines and procedural complexities, and understandably, they catered to procedural necessities of a far-less technologically facilitated monetary world. One other deficiency was the absence of clear provisions for appeals. This hindered the enforcement course of, and created authorized uncertainty.

The RRREFJ Act of 2024

The 2024 Act is available in to bridge the hole between world realities and the native authorized framework. Its scope is far wider than REJO, because it applies to the reciprocal recognition, registration and enforcement of international judgments relating to matrimonial issues, i.e. divorce, annulment and separation, in addition to financial obligations. It acknowledges closing and conclusive judgments of Scheduled jurisdictions. As at current, they’re the 53 Commonwealth international locations. An utility for recognition, registration and enforcement of a international judgment may be made inside a interval of ten years from the ultimate judgment, and by means of abstract process as offered for within the Civil Process Code.

By way of business transactions, its utility extends to pure individuals in addition to corporations, together with Enterprise Course of Outsourcing (BPO) corporations, that are growing within the nation. The Act doesn’t apply to tax, cost, superb or different penalty payable underneath a judgment of a international courtroom.

Nonetheless, the Act is restrictive by way of the applying of matrimonial issues of individuals whose marriages have been contracted underneath particular private legal guidelines, that are very a lot part of the Sri Lankan legislation regarding marriage and household.

Part 3(1)(b) of the brand new Act of 2024 states that the Act applies to a international judgment for the dissolution or annulment of a wedding or separation of the events to a wedding provided that such judgment is obtained in respect of marriages entered underneath the Basic Marriages Ordinance No. 19 of 1907 (GMO) and the place such judgment shall be deemed closing and conclusive so long as both get together to the wedding was domiciled in such nation on the date of the judgement; routine resident in such nation for a interval not lower than one yr earlier than the date of  the judgment; was a nationwide of such nation on the time of the judgment; or each events have submitted to the jurisdiction of such nation. This leaves out Muslims who, underneath Sri Lankan legislation, are compelled to marry underneath the Muslim Marriage and Divorce Act 13 of 1951 (MMDA), and the Knadyan Sinhalese who might select to register their marriages underneath the Kandyan Marriage and Divorce Act 44 of 1952 (KMDA). Whereas the vast majority of the inhabitants are ruled by the Basic Regulation and are required to observe the GMO in issues regarding their marriages, a substantial proportion of the Sinhalese inhabitants who’re acknowledged as ‘Kandyans’ nonetheless choose to marry underneath the KMDA. The Muslims who represent 9.7% of the full inhabitants of the nation haven’t any selection however to contract their marriages underneath the MMDA. The exclusion of their marriages from the 2024 Act raises a number of considerations together with their proper to equality earlier than the legislation, which is a basic proper assured underneath the nationwide structure.

Manner ahead

The RRREFJ of 2024 is a well timed legislative intervention within the sphere of personal worldwide legislation in Sri Lanka because it addresses a socially related authorized lacuna within the nation. The legislative effort was well-recognized by the apex courtroom of the nation when the constitutionality of the RRREFJ Invoice was challenged in S.C.(SD) No.80/2024 and S.C.(SD) 81/2024. Nonetheless, the Act has room to be extra democratic by way of its utility, particularly within the present social context by which the nation is struggling to beat socio-economic devastations brought on by a number of causes together with ethnicity, race, and faith. With needed amendments to keep away from these apparent racial and non secular exclusions, the Act can strengthen the international locations ties with the worldwide village extra absolutely.