The origin of Sinhalese written law tradition alias Niti Nighanduva

By Dhanushka Silva

The autochthonous administration of justice system that evolved in the hands of indigenous people from immoral days in Sri Lankacannot be liberated from the formative legal structure. 

Perhaps, bearing counter minds on this light, dozens of Western writers who engraved the limelight of the Roman Dutch Law and English Common Law, grossly praised the barbarous features and negatives of the genocidal justice system prevailed in the native soil in ancient Sri Lanka.

Withal, it is a gridlock to refer that the justice does not exist in a country on the ground where the law has not been composed. Though the law does not neatly fall into the black-letter form, no hesitation to state that the Sinhalese were in the practice of a formal justice structure that was firmly moulded by the native traditions and customs. 

Besides, some ancient folk-groups like Vedi (Vedda community), Ahikuntika (Gypsies) and Hulawali who have retained a special cultural identity up to modern days based upon their traditions, rituals and regulations,which demonstrates the strength of the customary law in Sri Lanka.  

The TripitakaDhamma came in for Sinhalese as an endorsement of Mahindagamanaya, Indo Aryan customary law that scattered over Sinhalese legal horizon by the indigenous Aryans and the customary law derived from their folklore are prerequisites of the legacy of country’s legal history. 

Alas, the Sinhalese lost a valuable written legal literature that we should have had in our possession of due to the lack of adopting a culture of promulgating the manner in which the administration of justice has been employed. 

Luckily, Sinhalese entertained that literature right in the Kandyan era after passing long-term historic periods from Anuradhapura period with the compilation of Niti Nighanduwa by English writers while they were in search of laws relating to a form which is necessary for organisational pattern for a unitary governance in Ceylon.

It is worth to note here that Niti Niganduwa is the exemplary code of law, compiling the plenty of growing fundamentals of customary law of the Sinhalese in detail. More importantly, the same impacted on the legacy of Sinhalese written law. 

Compilation of Niti Nighanduwa 

The British officially took over the administration of Ceylon as a whole on 2March 1815 and were engaged in a probationary research outlining the law, principles of law, criminal justice system and punitive methods that has been employed since ancient times in Sri Lanka to establish a unitary form of judicial structure to refashion the entire institutional matrix. In the interim, the problem arose was that the British couldn’t find an exemplary code of law with an elaborative light that could overlay all these areas. 

As an option, the decision taken in November 1818 by the temporary commission appointed to be controlled the upcountry areas, each commissioner had to compile a comprehensive report regarding the subjects of Sinhalese pre-colonial institutional set up, culturally adhered norms and legal paradigms. 

Having regardedthe only detailed documentation was compiled by John Doily but with numerous disconnected facts. Inserting new facts (which were not included to first report) under the directions of Simon Sawers, Doily’s seminal report turned into a new legal embryo that was titled Niti Nigandhuwa.

The preface of Niti Nighanduwaprovides a brief account that the records preserved in the court of Kandy and the scholarly opinions of experts on the Sinhalese customary law were referred and taken into account in the process of compilation of the new code of law.  

Underlined key concepts of Niti Nighanduwa

Niti Nighanduwa later titled as ‘Niti Nighanduva’ or the vocabulary of law as it existed in the last days of the Kandyan Kingdom’. “Nighanduwa” in Sinhalese etymological terms, is a synonym for the definition of vocabulary. This is thereforethe promulgation of the Sinhalese indigenous law and rudimentary practices that had been in existence in the Kandyan cultural bedrock, is the paramount purpose of compiling Niti Nighanduwa. However Dr. Wijethunga in his work ‘Legal Philosophy in Medieval Sinhale’ (2008) states that the most of legal stems that can be seen in the Niti Nighanduwa, reflects the legal philosophy of the whole medieval era.  

Niti Nighanduwa has preliminary portioned the Sinhalese indigenous law into three pillars as Raja Neethiya (Law of Royals), DhammaNeethiya (Religious Law) and LokaNeethiya (law of the World). Historically, as has been stated in Niti Nighanduwa, only the first two types of laws have been incorporated into written tradition. Notwithstanding, the law of the World has been unwritten so far as the law of the world has been developed from oral tradition and from one dynasty. Accordingly, the writers of Niti Nighanduwa reveal two major reasons that have innumerably contributed to the rise of non-written legal tradition in the ancient Sri Lanka.

The five chapters involving into Niti Nighanduwa has been divided into several legal fundamentals that are to be dealt with. Furthermore, each of fundamentals describe under few sub-sections in depth. 

The first two chapters, following the chronology of an ordinary code of law that deals with statutory conceptions to be defined in a standardised manner, where key legally countered concepts such as the lawfulness-the unlawfulness, the person-the materials, the free man-the slave, the immovable property-the movable property, the living property-the immortal property and the legitimate childhood-the illegitimate childhood are interpreted in a very subtle language. Thus, some scholars are in a strong opinion that the chronological order followed by Niti Nighanduwa is aligned with Roman Dutch written legal tradition.    

The third chapter gives a comprehensive account regarding legal and cultural background of marriage, divorce, breakdown of marriage, proposal of active marriages, proposals for inactive marriages, rituals relating to binnaand deega marriages, modes of entering into deega marriage, practices pertaining to polyandry, culturally-adopted principles of handing over the duties of a child after the termination of marriage, the manner in which right entertaining the legitimate child and land rights of an adopted child entitles to.        

In the fourth and fifth chapters, Niti Nighanduwa starkly discusses the doctrine called “inheritance” under the five sub-topics namely the inheritance of the property of the deceased, ownership of the property and inheritance rights of the children who born from two separate marriages, the inheritance of the children who have been born from polyandry, the way in which the inheritance works in the instances where it comes as a  matrimonial right and  the inheritance rights vested with the adopted children.

As Dr. Wijathunga envisages the most of the legal concepts and doctrines in the work are interlinked with present-day practice while the same linkage cannot be seen in some rare cases. Apparently, the authors has also used relatively compatible synonyms in interpreting the legal concepts in a multi-definitional approach as not being an obstacle to the original literal meaning of that concepts.   

New Sinhala version 

The laws originally engraved in Niti Nighanduwa, translated into Sinhalese by the writer named T.B. Panabokka in 1879. An year later, in 1880, this translated Sinhala version with few new corrections again translated into English as ‘Niti Nighanduwa or The Vocabulary of the law as it existed in the last days of Kandyan Kingdom’ by a high ranking officer of Ceylon civil service, C.J.R.Lemasurier. 

Lemasurier provides a valuable forward in his work outlining the set of principles prevailed in the Sinhalese including judicial hierarchy, the substantive judicial powers vested with different courts, judicial powers lie with top ranking officials and procedural law.

As by Lemasurier in the preface, the prerogative powers of the state were centred round the office of king. The power of the king is decisive in hearing a case and in coming to a decision after re-examining the appeals. The ‘Maha Naduwa’ entrenched the ultimate appellate jurisdiction and functioned as the supreme court of the state while ‘Gam Sabha’ functioned as the lower court, held civil and criminal jurisdiction over the grassroots level. 

When the king is the highest authority in the judiciary, he is separately referred the jurisdiction over the government secretariats, adikars, disswas, rate mahatmaya, wanniyar, korala, widhane and the other heads of the judiciary. Any officer legally enables to reverse the decision taken by the previous officers under reasonable circumstances. It was a neutral principle adopted that where the evidence brought by plaintiff’s relatives, employees and servants did not take against the defendant in both civil and criminal proceedings. 

Final and a conclusive decision was reached after proper examination of the evidence of both parties while it was seeming in case any suspicious evidence is produced, the primary techniques such as oil evidence, paddy evidence and earth evidence were being admitted to establish de-facto evidence. Hence, the king lies with the power to issue provisional or permanent commands against the defendants who were evaded the court of law.  

Conclusion 

In a nutshell, Niti Nighanduwa credited the prestige of transforming Sinhalese traditional law from unstructured customary law to structured written legal tradition. Even though the code is compiled by several prestigious English writers, it does involve the discipline only about certain autochthonous localities of native Sinhalese’s law and not about European legal heritage even remotely. Of course, it is an intense proof of the core-aim of compiling the code. 

However, Niti Nighanduwa has not come to a certain end, though it is with a well beginning. Therefore, the majority of scholars are in the strong view that the overall work is of five chapters that might have been longer in the future. Nevertheless, it can never be denied that ‘the novel culture of written law’ inserted by Niti Nighanduwa has paved the way for a paradigm shift that radically overturn the legal heritage of Sri Lanka.