Sri Lankan Law Research Papers (original) (raw)

The significant developments in Sri Lankan public law in the last three decades have been due to the explicit or implicit influence of Indian jurisprudence. This influence can be seen in Sri Lanka’s jurisprudence on the right to equality, the habeas corpus writ, the “basic structure” doctrine, the interpretation of the rules of standing, and in the fundamental rights jurisprudence. Since the establishment of British colonial rule, English common law has been the foundation and source for the development of Sri Lanka’s public law. Three methods characterize a recent turn to Indian jurisprudence in the development of public law. One method is of direct judicial borrowing. The second method is reinforcement of judicial reasoning by reliance on Indian jurisprudence. The third is the creeping influence of Indian jurisprudence. I argue that these developments unsettle, if not replace, the historical reliance on English law. These developments are arguably an indication of a nascent Sri Lankan common law that draws its inspiration, at least in part, from a jurisprudence that bears constitutional proximity to India. Consequently, the place of English common law as the “main source of law” in Sri Lankan public law has now been weakened.

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- Comparative Public Law, Comparative Methods, Sri Lankan Law, Indian Constitutional Law
- by RAMCHANDRA SHIDHAYE
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- Pharmacology, Pharmacy, Sri Lankan Law, Intrathecal

I take pleasure in sharing an article written by late Prof. Wickrema Weerasooria and published in the Sunday Times of 25th May 2008 titled “Bank held liable for money transfer to a ‘non-existent’ foreign bank.” The article was based on a judgment pronounced by me in 2008 in the case of Vanathawilluwa Vineyard Ltd. v The Commercial Bank of Ceylon (2008) 1 SLR 68, also reported in the Commonwealth Law Report at [2008] 5 LRC 225. The decision sparked much interest and the points of importance that arose in the case for decision are explained with great clarity and precision by Prof Weerasooria, a great academic who also specialized in Banking law and many other facets of Commercial and International Trade Law.

- by Saleem Marsoof
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- Law, Banking, Shipping, International Commercial Law

Even though marriage is considered as a union of two equal partners, the underlying truth is that the rights of a married woman if often restrained by social and cultural obstacles. Considering the State obligations towards international treaty law, Article 16 of the UDHR and Article 23 of the ICCPR affirms that 'both men and women should receive equal treatment during marriageable'. However, the necessity of criminalization of marital rape is debatable in some countries due to their social and cultural obstacles. Considering the situation in Sri Lanka, marital rape is not considered to be a crime, unless a judge has ordered a spousal separation. Therefore, this dissertation argues the lack of criminalization of marital rape is in breach of international treaties as well as the Constitution of Sri Lanka. The main objective of this research is to identify the root cause in the reluctance of criminalization of marital rape and to make effective recommendations in order to safeguard the rights of married women.

- by Pavani Ekanayake
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- Human Rights, Private law, Sri Lankan Law, Marital Rape
- by Chamila Talagala
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- Police, Torts, Delict, Tort Law
- by Roshel Perera
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- Contract Law, Law of Contract, Sri Lankan Law, Malaysian Act of Contracts 1950

The divorce law prescribed in the Marriage Registration Ordinance is based exclusively on the concept of matrimonial fault, while the Muslim and Kandyan law contain grounds based on the doctrine of fault as well as on irretrievable breakdown of marriage. This study attempts to establish the inappropriateness of the fault-based divorce law and adversarial divorce procedure, and to introduce an effective divorce law based on marital failure to better suit the socio-legal context in Sri Lanka.

- by Rose Wijeyeskera
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- Family Law, Marriage and Divorce, Sri Lankan Law, Marriage law

This is a slightly revised version of my article entitled “The Custody of Children in the Muslim Law of Sri Lanka” published in (1979) Meezan 23. Meezan is an annual publication of the Muslim Majlis of the Sri Lanka Law College, and has been the primary repository of my articles relating to Muslim law. The article primarily deals with the principles of Muslim Law that applies to Muslims of Sri Lanka with respect to the custody of minor children. The principles are mainly sharita’t based, and have been well illustrated by reference to Sri Lankan judicial decisions, and wherever appropriate, comparisons have been made with the principles of the Common law of Sri Lanka that do not apply to Muslims of Sri Lanka in regard to custody of children.
Since the Quazi Court that exercises matrimonial jurisdiction over Muslim inhabitants of Sri Lanka has not been conferred with the power to deal with issues of custody and access, cases involving custody are dealt with by the District Courts in Sri Lanka. Most of the judicial decisions discussed in the article are of the appellate courts on appeals from District Courts, or decisions relating to habeas corpus applications. In the concluding part of this article, the question of whether the custody jurisdiction should be vested in the Quazi Court after it is appropriately upgraded to modern standards is also considered, since the vesting of the custody and matrimonial jurisdictions in two different courts can not only cause unnecessary difficulties to the estranged spouses and the affected children but can also put justice in disarray due to the possibility of inconsistent decisions emanating from a multiplicity of jurisdictions.

- by Saleem Marsoof
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- Islamic Law, Muslim Family Law, Equality and Diversity, Sri Lanka

Smart contracts are computer aided self-executed protocols essentially given the status of a contract by their users and may or may not be executed on a Blockchain ecosystem. But granting the status of a contract by the users will not assign it enforceability, unless the legal mechanisms of a state either by interpreting the existing law or by legislation of a set of sui generis law would grant such status. Primarily, this research comparatively answers the question of enforceability of a smart contract in the context of Sri Lanka under contract law and Electronic Transaction Act taking experience from the two jurisdictions: United States: (Arizona and Illinois) and United Kingdom.

- by madhava De Alwis
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- Sri Lankan Law, Uk Law, Distributed Ledger Technology, Cyber and Digital Law
- by Shiran H Widanapathirana
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- Sri Lankan Law, Legal system
- by Charindri Jayarathna
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- Computer Science, Information Security, Computer Networks, Social Media

The goal of this study is to see if and how branding and the trademark system may be utilized in a commercial setting in Sri Lanka to extract value from tourism-related products and services.
The research emphasizes the relevance of unique signs, such as trademarks, collective and certification marks, and geographical indicators, in the context of tourist promotion from an intellectual property standpoint. This study uses a systematic literature review technique to explain the most current academic contributions in order to explore the use of the trademark system to brand touristic offers.
The findings of this study show that, although being a popular tourist destination, Sri Lanka has just scratched the surface of its real potential for tourism marketing through the use of branding and the country's trademark system. This paper provides tourism stakeholders with useful information for making efficient use of trademark rights in the tourist industry, as well as suggestions for future academic study. To the best of the author's knowledge, this is the first study paper to look into the usage of branding and trademark systems in the Sri Lankan tourist sector.
Keywords: Intellectual Property, Branding, Trademark, Tourism.

- by Rebecca Abeysinghe
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- Tourism Studies, Patents, Sri Lanka, Intellectual Property Law
- by Shiran H Widanapathirana
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- Sri Lankan Law, Legal system

The main focus of this paper would be the drafting and lodging of effective criminal and civil appellate pleadings before the courts exercising appellate jurisdiction in Sri Lanka, which are mainly the Provincial High Court, Court of Appeal and the Supreme Court. It is important for every Counsel to be aware of and to comply with all provisions of law and rules of court relating to the drafting and lodging of pleadings, and there is much more to effective pleading than sticking to the rule book. The objective of this paper is to outline the elements of good pleadings while highlighting some of the pitfalls of bad pleadings. An earlier version of this paper was prepared for my presentation on the same subject at a Seminar organized by the Bar Association of Sri Lanka on 20th September 2019, but this is shared soliciting views of comments of readers with a view of improving it prior to publication.

- by Saleem Marsoof
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- Criminal Procedure, Appellate Advocacy, Appellate Practice, Civil Procedure

This article entitled “Sri Lankan Experience in Commercial Dispute Resolution though Local and International Arbitration” by Justice Saleem Marsoof PC, was published in [2017] XXII Bar Association Law Journal page 300. The objective of this article was to provide a glimpse of Sri Lanka’s rich experience in dispute resolution, in particualr through Arbitration. The article focuses on Conflict of Law, Jurisdictional and Enforcement issues, and after a brief introduction to Sri Lanka’s arbitration culture, it goes on to examine conflict of law issues before examining conflicts of jurisdiction that may arise in Sri Lanka and elsewhere. The final part of the article is devoted to a discussion of issues that could arise in the recognition and enforcement of local and foreign arbitral awards. One of the features of this article is that it goes on to discuss, albeit briefly, the decision of ICSID in Mihaly USA v Sri Lanka in which the author appeared as Senior Sri Lankan Counsel before the International Centre for Settlement of Investment Disputes, situated in Washington DC, USA.

This is the text of the Plenary Address made by Justice Dr. Saleem Marsoof, President's Counsel, on 3rd December 2021 at the International Conference on Advancement in Sciences and Humanities organized by the Sri Lanka Institute of Information Technology (SLIIT) on the theme “Research for the Betterment of Humanity”. In the address, Justice Marsoof focused on positives and negatives of the rapid development of science and technology and in particular, the innovation of Artificial Intelligence (AI), in the context of multidisciplinary, interdisciplinary or transdisciplinary legal research. He also paid attention to certain ethical and moral responsibilities vested on mankind to harness the benefits of these developments and research for the betterment of mankind. In the course of his address, Justice Marsoof also discussed the impact of modern scientific and technological developments on law and the legal profession.

- by Saleem Marsoof
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- Artificial Intelligence, Legal Profession, Socio-legal studies, Legal Ethics

This paper attempts to discuss the notion of vicarious liability especially in relation to
incidents arising out of Road Traffic accidents. It is submitted that this paper would
assess certain socio economic conditions that have developed over the years in Sri
Lanka and how the law, and especially Courts ought to take cognizance of such changes
in the social fabric. This paper would focus on two circumstances in which the law
ought to hold the owners of vehicles liable for the actions (negligent or otherwise) of the
drivers, firstly, when drivers resort to illegal activities whilst being employed; Secondly
when the vehicles are sold on what is commonly termed ‘Open Papers’. A further
complication that arises out of similar circumstances to the latter, where vehicles are
driven without any registration and/or insurance would also be assessed.

- by Thishya Weragoda
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- Civil Law, Delict, Damages law, Sri Lankan Law
- by Mathurabhasini Thamilmaran
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- Law, Sri Lankan Law, Right to Property, Personal Laws in Sri Lanka

While the process of reform involving the upgrading of the Quazi Court System in Sri Lanka and the amendment of the Muslim Marriage and Divorce Act of 1951 (MMDA) has been much debated and written about, this debate has now been eclipsed by another equally vociferous one, namely the campaign to eliminate personal laws in Sri Lanka under the slogan ‘One Country, One Law’, which if implemented, will make MMDA, and a few other personal laws, irrelevant. In this article, an attempt is made to examine the background and impact of both debates and consider the pros and cons of the campaign for "One Country, One Law" in the context of Sri Lankan Matrimonial Law, considering side by side the MMDA and the Marriage Registration (General) Ordinance of 1907, that applies in Sri Lanka to all persons other than Kandyan Sinhalese and Muslims. The article has ben published in (2019) Meezan page 19.

- by Saleem Marsoof
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- Comparative Law, Constitutional Law, Muslim Family Law, Muslim Minorities

This is a very short essay on my life as a law student in the Faculty of Law of the University of Ceylon, Colombo, now known as the University of Colombo. It deals very briefly with the history of the Faculty of Law and its origins in the Department of Law in the Faculty of Arts of the University of Peradeniya, of which the first Vice Chancellor happened to be Sir Ivor Jennings, and goes on to describe student life in the Faculty of Law in the late sixties and early seventies. This essay was written specially for the website of the Alumni Association of the Faculty of Law (AAFL) of the University of Colombo

- by Saleem Marsoof
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- Legal Education, Public Universities, Sri Lanka, History of Universities

Adoption of Children in Islam and the Muslim Law of Sri Lanka – An Abstract
This is a slightly modified version of an article previously published under the same title in [2008] Meezan pages 1 to 5. Meezan is an annual publication of the Law Students’ Muslim Majlis of the Sri Lanka Law College.
Islam encourages charity, and also insists that those who have the means should care for orphans and other needy children in the same way as they would care for their own children. Islam recognizes the foster parent relationship, but does not sanction adoption tin the sense in which it is used in the Sri Lankan Adoption of Children Ordinance No. 24 of 1941. This Ordinance expressly provides that “upon an adoption order being made, the adopted child shall for all purposes whatsoever be deemed in law to be the child born in lawful wedlock of the adopter.”
In a landmark decision Ghouse v Ghouse [1988] 1 SLR 25, the Supreme Court of Sri Lanka examined the implications of this provision in the context of intestate succession rights of an adopted child. This article examines in great detail, the sharia't concept of kafala (foster care) in the light of relevant statutory provisions and judicial decisions, and attempts to resolve apparent conflicts and contradictions in the legal fabric.

- by Saleem Marsoof
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- Children and Families, Muslim Family Law, Shariah, Sri Lankan Law
- by Niroshan Pathberiya
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- Law, Jurisprudence, Comparative Law, Constitutional Law

Due to the common misconception that moneys in bank accounts are owned by their account holders (who are usually the bank customers), and, the complicated nature of the principles of banking law, sometimes, it may be thought that a mistaken payment resulting from an erroneous credit entry in a customer account is a free gift from the bank to its customer. However disappointing it may be for the customers, this is not so. The purpose of this article is to examine this position with reference to the remedies provided in both civil law and criminal law of Sri Lanka. More specifically, Part I of this article will examine the civil law remedy of “action for money had and received”, which would be available to banks to recover money that has been mistakenly paid to their customers, and, its application in Sri Lankan law. Part II of this article will examine the applicability of criminal law, in particular, the offences of theft and criminal misappropriation under the Penal Code of Sri Lanka, in situations where customers have obtained mistaken payments from their banks with dishonest intention.

- by Chamila Talagala
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- Criminal Law, Banking, Banking Law, Sri Lankan Law

This is the full text of the keynote speech made by Justice Saleem Marsoof, PC at the Annual Research Symposium of the Faculty of Law of the University of Colombo held on 19th December 2020 on a virtual Zoom platform at the height of the Covid 19 pandemic. In his keynote address delivered under the title “The Constitution and the Law at Crossroads: Reflections and Foresights of a Judge”, Justice Marsoof reflects on the seventy odd years of Sri Lanka’s post- independence history in the context of its Ethnic and Constitutional crises, the impact of the Covid-19 pandemic on Sri Lanka’s social fabric and the Constitutional issues that it gave rise to. Placing emphasis on the concept of ‘the Sovereignty of the People’ which is well ingrained in the current Constitution of Sri Lanka, he stressed the need for a broad consultative process for the enactment of a new Constitution for Sri Lanka that fully reflects the aspirations of the People of Sri Lanka. Justice Marsoof also touched on the very important issue of whether the Courts of Sri Lanka may progressively develop the Common Law of Sri Lanka, which as noted by Lord Diplock in his celebrated judgment in Kodeeswaran v Attorney General (1967) 72 NLR 337 (PC) has been built on a Roman-Dutch law foundation, and has suggested ways in which certain doubts created by the later decision of the Supreme Court of Sri Lanka in Priyani Zoysa v Rianzie Arsekularatne (2001) 2 SLR 293 in this regard may be resolved by including appropriately worded provisions in the proposed new Constitution.

- by Saleem Marsoof
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- Religion, Cultural History, Comparative Law, Constitutional Law

The idea of divorce, in practical sense, is contrastively different than it is portrayed in books. The facts and the legal ramifications of the divorce cases in Sri Lanka bring us to an understanding that the real-life operation of laws on matrimonial disputes and relief cuts across many socio-cultural aspects, other than theoretical and hypothetical realms found in books. Although the theoretical and statutory foundations of the laws on dissolution of marriage introduce definite, specific and strongly linked legal principles, in reality, it involves, time consuming, complicated and scandalous aspects governed by various legal and socio-cultural dynamics. Lapses in conceptual and jurisprudential aspects, followed by

- by Niroshan Pathberiya
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- Law, Family Law, Marriage and Divorce, Sri Lankan Law

Summary on landmark Judgment on Gomes Vs.Gomes pronounced by the Supreme Court of Sri Lanka in June 2018

I take pleasure in sharing my Introduction to the inaugural issue of the Colombo Law Journal published by the Law Faculty of the University of Colombo on 22nd July 2016 consisting mainly of the products of legal research of the teachers, students and alumni of the Faculty of Law.
In this introduction, I have attempted to traverse the history of the Faculty of Law of the University of Colombo, which had its origins in the Department of Law, which was set up in July 1947 under the Faculty of Arts of the then University of Ceylon established under the Ceylon University Ordinance of 1942. The Department of Law was shifted to Peradeniya in 1950, where the first law degrees were awarded, but was brought back to Colombo in 1965. It continued to be a Department under the Faculty of Arts of the University of Ceylon, Colombo, till 1967 when it was upgraded as the Faculty of Law of the same University. The University of Ceylon, Colombo, was given greater autonomy and independence when it was reconstituted as the University of Colombo in 1968 under the Universities Act No. 16 of 1978.
Through my own personal experience, I have attempted to capture the variety and excellence of student life in the Law Faculty and its significance to legal education in general. I have also dealt with the importance of legal education in relation to various career paths available to a student graduating from the Faculty of Law. In this introduction, I have focused on the question of how to enhance levels of academic excellence and professional expertise to meet global challenges, and paid tribute, in my own way, to the Law Faculty, which has produced very distinguished alumni. I have left to the reader to enjoy and benefit from the contents of the Colombo Law Journal, except for commenting on the very first article that appears in the inaugural issue of the Journal co-authored by a distinguished member of the teaching staff of the Faculty and an outstanding student of the Faculty of Law.

Over 2015 and 2016, Sri Lanka enacted a comprehensive right to information (RTI) regime by constitutionally recognising the RTI and passing enabling legislation. Taking into account the context of the country’s political and bureaucratic culture, its history of RTI jurisprudence and repeated legislative attempts and the particularities of the enacted provisions themselves, this article argues that the RTI regime represents a significant constitutional advance in Sri Lanka. The regime’s operationalisation has unearthed a number of operational difficulties as well as promising advances, underscoring both the challenges and the potentials of effectively providing for the RTI. As one of the few governance reforms enacted by the national unity government, however, the RTI regime’s lone operation within a deficient and unreformed architecture of transparency and accountability places a particular and heavy burden on it, one which may also adversely impact its future sustainability.

- by Pasan Jayasinghe
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- Sri Lanka, Freedom of Information, Sri Lankan Law, Right to Information
- by Aruna D De Silva
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- Dispute Resolution, International Arbitration, Arbitration, Arbitration Law

This is a brief note on the issues that the people of Sri Lanka as well as the government of Sri Lanka have to face in regard to the disposal of bodies of COVID-19 victims. While the World Health Organization (WHO) Guidelines have with consistence provided for burial and cremation as alternate modes of disposing of the bodies of victims, the Sri Lankan authorities have not shown the same level of consistency, varying the policy and practice twice withing a short span of a week between 26th March 2020 and 1st April 2020.
Decisions relating to the manner of disposing the bodies of victims of COVID-19 are extremely sensitive, and may have to be taken in the backdrop of many socio-economic and religio-cultural factors, in addition to the applicable pragmatic health safety considerations. In Sri Lanka, while the decision whether to cremate or bury the body of a deceased person who is found to be a victim of Coronavirus or COVID-19 is a decision that the next-of-kin is lawfully entitled to take, there may be many Constitutional and legal provisions that govern the decision.
The paramount consideration in the context of the pandemic situation that prevails is the safety and protection of the people and the need to stop the spread of the virus. Hence while the religious sentiments of the people and religio-cultural practices are important, COVID-19 is a serious public health risk that may require the adoption of exceptional and extraordinary measures to bring into control the pandemic situation that has arisen in Sri Lanka and other parts of the world.

Legitimate Expectation, as a ground of Judicial Review of government actions, has become an extremely popular choice for an overwhelming number of litigants who wish to pursue a remedy through the Writ Jurisdiction vested in the Court of Appeal by Article 140 of the Constitution of the Democratic Socialist Republic of Sri Lanka. Scores of those applications have been rejected by the Honourable Court of Appeal because the applications themselves are misconceived in law and in fact. This article, therefore, aims to clarify the intricacies of the principle of Legitimate Expectation considering the recent Judgment of the Honourable Court of Appeal and those treatises of eminent Jurists that have become synonymous with Administrative Law. It aims to provide a general overview of the substantive and procedural aspects of the principle of Legitimate Expectation. The article will also provide a brief overview of the case law in relation to those aspects. It will traverse, in brief, the doctrinal connections of those above-mentioned aspects to the demands of Natural Justice and the Doctrine of Estoppel. An application to the Honourable Court of Appeal based on a legitimate expectation per se is notoriously difficult to succeed and hence, ancillary issues that may be taken cognizance of by the Honourable Court of Appeal before an application of that nature is allowed and a writ is issued in the favour of the Petitioner by the said Honourable Court is also traversed in brief. The article, finally, also poses a proposal pertaining to how the doctrine may be used to ensure good governance in Sri Lanka. The authors welcome any feedback that may emanate from a reading of the article.

- by Shane Foster
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- Judicial review, Administrative Law, Sri Lankan Law, Legitimate expectations
- by Achalie Kumarage
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- Sri Lanka, Interpretation, Sri Lankan Law
- by Chamila Talagala
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- Intellectual Property, Translation Studies, Open Access, Copyright History
- by Arundathi Divisekara
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- Law, Environmental Law, Environmental Studies, Fisheries

This is a synopsis of the address made at the Graduation Ceremony of the CfPS Law School held at the BMICH on 15th February 2020. In the course of the address, emphasis was laid on the special aspects of the law a budding lawyer aspiring to enter the legal profession in Sri Lanka should be familiar with. Such knowledge will be extremely useful in the delegent discharge of functions as a legal practitioner in any career in the public sector as Judicial Officers, State Counsel, legal draftsmen or in the private sector as bankers, securities regulators, or as legal researchers and teachers of law, or in building up of careers as legal practitioners in the highly lucrative private bar. Sri Lanka’s rich cultural heritage is reflected in its complex legal fabric, which in a sense, is a “legal museum” exhibiting side by side, laws of diverse origins. It is therefore important to stress that those LL.B graduates of the University of London intending to work in Sri Lanka should make a specially study of Sri Lankan law which govern Sri Lanka’s property law, contract law, law of persons including matrimonial law and the law of succession including last wills, which may fall outside the scope of the University of London Law degree.

- by Saleem Marsoof
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- Comparative Law, Civil Law, Legal Theory, Comparative Constitutional Law