 can marry under the General Marriages Ordinance.
We have a general statute called a General Marriages Ordinance. Any person who may be subject to a principle, to a regime of customary law, can repudiate that law. He is capable of repudiating the customary law and he can choose instead to be governed by the provisions of a statute that has general application.
So there is really a choice of law. There is, as it were, an internal conflict of laws within the national legal system. It is necessary to protect and to preserve these spheres of operation of customary laws and to ensure that statute law does not make unwarranted inroads into the customary systems that are applicable. And that can be illustrated in many ways both in regard to the substantive law and in regard to procedural law.
The indigenous systems play down as much as possible the cohesive element of law. They believe very much in methods of conciliation and arbitration. At the lowest level, the village elders will get together, people who are respected in the community will endeavour to resolve these problems in a speedy and amicable manner in a manner that is acceptable to both parties to the dispute.
And you proceed like that from tear to tier to tier and it is only the most complex cases which are not capable of resolution by any other method that go up to highest judicial tribunal in the country. But in Sri Lanka they go to the Supreme Court as a court of first instance rather than as a court of final instance. We have not applied any system of arbitration or conciliation at all and we are very much wedded to an adversarial tradition. The whole of our legal system is very adversarial in content and complexion.
Now that again is a dramatic contrast to the attitudes of indigenous peoples and the basis on which their legal and judicial system is constructed. It seems to be quite ridiculous to apply the adversarial system in typical cases relating to the violation of fundamental rights. The adversarial system works well enough in situations where the two parties are more or less evenly matched in terms of strengths and resources.
But if you have, on the one hand, the all-powerful state and, on the other hand, a poor villager who complains of harassment by the police and then you expect to apply an adversarial system, it is obvious that the results will be far from impressive.
Today our approach is that the person who complains of an infringement of his fundamental rights must undertake the burden of establishing his case. He must collect all the necessary documents from the files, he must produce the necessary witnesses, he must make the necessary affidavits available to the courts and it is for him to establish in their entirety the elements of his case. That is obviously a futile undertaking.
It is not something that he is capable of doing at all because he finds himself pitted against the almost unlimited resources which are at the disposal of the state. So this whole tradition of adversarial jurisprudence which we have uncritically applied in all spheres is something that has deprived a great part of our judicial system of meaning and substance.
And that is certainly a deficiency that indigenous people have avoided consciously and studiedly in formulating the basis of their own legal and judicial system. If you examine the character of an indigenous legal system, you will find that the principles are very simple, unsophisticated, lacking in complexity.
In most indigenous legal systems the basis of the law of contract is simply the principle that your word is sacred. If you give the other person your word, you enter into a transaction on that footing, then you are liable if there is any infraction any violation or infringement of your promise. Later legal systems, especially the legal systems inspired by the Western tradition, took on a certain dimension that is entirely lacking in the traditional or indigenous legal systems.
For example, the English law adopted the criterion of consideration. I don't want to go into technicalities, but contrasting primiti