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Jaffna "Tesawalamai" Law: misconceptions, misunderstandings and misgivings

By: Dr.Rajasingham Narendran

Tesawalamai ('Tesam' means country and 'Walamai'means customs), are the codified laws and customs of the inhabitants of the province of Jaffna (now the Northern Province) in Sri Lanka. Tesawalamai are customs that prevailed in North Ceylon for several centuries before the advent of the Portuguese

Tesawalamai is recognized within the overall laws governing Sri Lanka, as being applicable to the inhabitants of the province of Jaffna. It is among the approximately five system of Municipal Common Law recognized in the Sri Lankan legal system, namely, Roman-Dutch law; the Tesawalamai (Jaffna); the laws and usages of the Muslims; the Mukkuwar law (Batticaloa); and the Kandyan law. It is recognition that the customs of the people of Jaffna are distinct and different from those of other peoples on the island. The same recognition has been accorded to the customary laws of the peoples of Batticaloa and Kandy, and those of the Muslims, wherever they may live in the island.

The 'Tesawalamai' laws applicable to Jaffna have been misunderstood and much maligned in the context of the demand for a separate state spearheaded by the 'Jaffna Tamils'. These customary laws have been accused of being designed to prevent the 'Other' peoples of Sri Lanka owning property in Jaffna and even creating 'Bantustans'. These laws should be understood in terms of what Hegel has beautifully summarized:

" The State, its laws, its arrangements, constitute the rights of its members; its natural features, its mountains, air, and waters, are their country, their fatherland, their outward material property; the history of this State, their deeds; what their ancestors have produced, belongs to them and lives in their memory. All is their possession, just as they are possessed by it; for it constitutes their existence, their being."(G.W.H. Hegel in his essay ' Philosophical History').

I have exclusively referred to the book 'Tesawalamai'' written in 1962 by T.Sri Ramanathan, a proctor of the Supreme Court of Ceylon and a lecturer at the Ceylon Law College, in my library. The book in my possession is the fourth edition that appeared in 1972. Sri Ramanathan had compiled this book, in his words, " For the benefit of students primarily and also of those who would like to have a knowledge of the Tesawalamai". What follows is a summary of what is pertinent to the present times, abstracted from Sri Ramanathan's book.

Tesawalamai, meaning ' Country Customs', before it was codified and promulgated by the Dutch in 1708, was the customary law applicable to the Tamils who inhabited the Jaffna district. It is very difficult for one to trace the origins of this system of law. According to Sri Ramanathan, "The code of Tesawalamai like the law of Medes and Persians remains unchanged at least on paper in spite of many changes in the customs and many repeals of statute. The world has changed. Jaffna has also changed. Early customs are in disuse now. Customs regarding adoption, mortgage of slaves, still have legal sanction although the custom has disappeared. Slavery was abolished by ordinance 20 of 1844. Still the Tesawalamai code gives legal sanction to slavery. It must be remembered that good portion of the code of Tesawalamai as it stands is obsolete and ineffective".

According to Sri Ramanathan, some of the principles of the Hindu joint family system have found a place in Tesawalamai, namely, " So long as the parents live, the son may not claim anything whatsoever; on the contrary, they are bound to bring into the common estate (and there let remain) all that they have gained or earned, during the whole time of their bachelorship excepting wrought gold and silver ornaments for their ladies, which have been worn by them and which have been acquired by themselves or given them by their parents, and that until the parents die, even if the sons have married and quitted the paternal roof". He surmises that owing to the immigration of Tamils from the Coromandel Coasts of India, the usages of those Tamils have found a place in Tesawalamai.

Sri Ramanathan quotes Justice Pereira, as having said (Chellapah vs. Kanapathy, 17 New Law reports at page 295- presumably in the early 1900s):

"It is a crude and primitive compilation, which may fittingly be described in the words of Tennyson, used with reference to another collection of law, as no other than a "wilderness of single instances"; and there is, I may add, with feeling of relief that one contemplates the fact that practically the whole of this ill-arranged and ill-expressed mass of law and custom has been recently repealed and replaced by legislation on more modern lines". The Tesawalamai laws as they stand today have been streamlined to fit requirements of modern Courts of Law.

In 1665, the Commander of Jaffnapatnam is quoted as saying," The natives are governed according to the customs of the country, if these are clear and reasonable; otherwise according to our laws". The Roman-Dutch law applied when the Tesawalamai is silent.

Tesawalamai is divided into two categories:

1. Personal laws applicable to Malabar inhabitants of the province of Jaffna.

2. Law that is applicable to all lands situated in the Northern Province.

According to legislative enactments, "Tesawalamai, or customs of the Malabar inhabitants of the province of Jaffna, as collected by order of Governor Simons, in 1706, shall be considered to be in full force". On questions that are decided according to Tesawalamai, these enactments state that all questions between Malabar inhabitants of the said province, or wherein a Malabar inhabitant is defendant, shall be decided according to the said customs.

The term 'Malabar inhabitants' of the province of Jaffna, means a person to be governed by Tesawalamai must be 'Malabar'. He/she must be an inhabitant of a particular locality, namely the province of Jaffna. 'Malabar' corresponds to the State of Travancore in Western India. To the question whether the law of Tesawalamai applies only to the inhabitants of Jaffna who came from 'Malabar' or to all Tamils having a Jaffna inhabitancy, the preface to the Tesawalamai code written by Claas Isaakz provides an answer, " A description of the established usages and institutions, according to which civil cases are decided among the 'Malabar' and Tamil inhabitants of the province of Jaffna on the Island of Ceylon". He uses the word 'Malabar' as synonymous with Tamil. The question whether 'Malabar' means 'Tamil' is settled by several judicial decisions. Justice Ennis (year?) had also made the observation that, "The Tesawalamai are not the customs of a race or religion common to all persons of that race or religion in the Island; they are the customs of a locality and apply only to Tamils of Ceylon who are inhabitants of a particular province".

The trend in case decisions show that Tesawalamai is applicable to the inhabitants of Northern Province and did not apply to Tamils of Trincomalee and Batticaloa. Further, if a person governed by Tesawalamai dies in a foreign country leaving immovable property in Sri Lanka, the law of interstate succession will be the Tesawalamai. If the immovable property is situated outside Sri Lanka, then the law of interstate succession will be the English law or the Roman-Dutch law.

Division of property according to Tesawalamai is governed by different rules, depending on whether the property is Ancestral/hereditary-patrimony inheritance (Mudusam), Ancestral/hereditary –non-patrimony inheritance (Urumai), Dowry (Chidenam), Residuary property (Thanam?) donated by a stranger or Acquired (Thediatettam). Property devolving on a person by descent at the death of his or her parents or of any other ancestor in the ascending line is Mudusam (patrimonial inheritance). Property devolving on a person by descent at the death of a relative other than a parent or an ancestor in the ascending line is called Urumai (non-patrimonial inheritance). Thediatettam (Acquired property) is property acquired by a spouse during the subsistence of the marriage for valuable consideration, such consideration not forming or representing any part of the separate estate of that spouse. It also includes profits arising during the subsistence of the marriage from the separate estate of that spouse. Chidenam, meaning dowry property is an adaptation of the matrimonial system of succession. It is a relic of the 'Marumakkattayam' law, introduced into Ceylon by its earlier Malabar settlers.

Tesawalamai code states that," Property brought by the wife was called in the Tamil language 'Chidenam' or by us as dowry. Dowry can be given at any time before marriage. It may be given even when no marriage is contemplated or even after marriage. There is a distinction between dowry property under Tesawalamai and property granted by a deed of dowry. Consideration in a deed must be given the same meaning as in the English Law. Dowry should be given as a quid pro quo to consummate the marriage".

Thediyattetam (Acquired property), consists of the profits derived from the separate properties of the spouses and all properties acquired by either of the spouses by their exertions during marriage. However, no property other than acquired by a spouse during the subsistence of the marriage for valuable consideration, such consideration not forming or representing any part of the separate estate of that spouse and profits arising during the subsistence of the marriage of that spouse , shall be deemed to be Thediyattetam. Thediyattetam should be a new acquisition, should have been acquired for a valuable consideration and should have been acquired during the subsistence of the marriage.

According to 'Tesawalamai' acquired property (Thediattetam) has been defined to include profits arising during the subsistence of marriage from the property of a husband or wife. Therefore, rent and profits from dowry property will be liable to seizure for the husband's debts, although the dowry property itself is not liable. If the dowry is diminished during marriage by the husband, it has to be replaced from the acquired property of the husband when the wife dies and the property is divided. If the wife squandered the dowry property then the loss need not be made good out of the husband's half of his acquired property. If the property of the wife or husband is improved considerably, either the husband's heirs or wife's heirs on his or her death cannot claim the expenses incurred in improving it.

The husband has the power to sell Thediattetam without joining his wife. This power to sell acquired property during the subsistence of marriage has been well recognized. However, after the death of the wife the husband has no power to alienate. In the event of death, divorce or separation, the husband cannot sell more than half the acquired property. When a husband and wife sell immovable property belonging to the wife, notice to warrant and defend title must be given to the wife separately if she is to be held liable. In such a case, notice to the husband cannot be construed as notice to the wife as well. The husband has the right to mortgage Thediattetam property during the subsistence of marriage and action can be brought against the husband alone without joining the wife. If the property mortgaged was Thediattetam and at the time of action, the wife was dead, it would be necessary to make the heirs of the wife parties to the action to bind her half of the estate. If a wife predeceases her husband, her share of the Thediattetam property passes to her children of the marriage as her heirs, to the exclusion of the husband.

The provisions in the Tesawalamai Code make it clear that gifts are regarded as the separate property of the spouse to whom the gift was made but any profits or proceeds from the subject matter of the gift was regarded as the acquired property of both spouses. If the gift is made by relatives on the father's side, then the property so gifted is regarded as father's side property. If given by the relatives of the mother, it is regarded as mother's side property.

The Jaffna Matrimonial Rights and Inheritance Ordinance apply only to those Tamils subject to the Tesawalamai. If a woman to whom Tesawalamai applies marries a man to whom it does not apply, she shall not during the marriage be subject to the Tesawalamai. However, when a woman to whom Tesawalamai does not apply marries a man to whom it applies, she shall be subject to Tesawalamai during the marriage. Further, according to Tesawalamai, property inherited by a child from its deceased mother goes on the death of the child, interstate, without brothers or sisters, but leaving its father surviving, to the mother's next of kin and not to the father.

A married woman governed by Tesawalamai, is subject to the marital power of the husband. The right of the husband to give his consent to the alienation or mortgage of the wife's immovable property is an incidence of his marital power. If a wife is given a cash dowry and if the wife uses the cash for the purchase of immovable property, such property would be termed Thediattetam (Acquired property) of the spouses.

All immovable or movable property any woman was entitled at the time of her marriage or which she may have acquired or received as inheritance, gift or conversion thereafter, belong to the woman for her separate estate, and shall not be liable for the debts or engagements of her husband, unless under specified circumstances. Similarly, all movable and immovable property belonging to the husband is his separate estate.

There is nothing in the Tesawalamai forbidding the sale of properties to outsiders, including the Sinhalese or Muslims. However, it sets certain procedures regarding the disposal of properties based on the above classifications. Examination of Title in respect of land where people are governed under Tesawalamai should be considered with great care. Sri Ramanathan recommends that when a Jaffna Tamil executes a deed it is always necessary to ascertain whether:

1. Such a person was married at the time of the execution of the deed

2. Whether he or she was married to a person governed under Teswalamai.

3. Whether the other spouse was living at the time of execution of the deed.

4. Whether the property was ancestral (Mudusam) or acquired (Thediyatettam).

5. Whether either spouse was dead at the time of alienation in which case the surviving spouse had the right to convey only one-half of the acquired property (Thediattetam).

These precautionary steps have to be taken by any person acquiring property in the Northern Province, irrespective of whether they are Tamils, Sinhalese, Muslims or other. Fixed property- lands- were highly valued in Jaffna and customs dictated that these are passed within families through various devices. Jaffna is yet a village centric society. The 'Jaffna men/women' yet identify themselves by the village of origin and marriage. The locality within a village is also important, as it provides information on the person's ancestry, linkages and caste. Tesawalamai customs evolved out of an inward looking society and are losing their relevance in modern times, especially after the end of the war for separation and the mass migration (both internal and external) and deaths it involved. There was definitely no malicious intention behind these customs that evolved over time, to create 'Bantustans'.

I hope those Tamils in the legal profession, who have practiced law in Sri Lanka, and have dealt with Tesawalamai, would clarify matters further to clear misconceptions, misunderstandings and misgivings that have taken root among our Sinhala compatriots.

16 Comments

First I like thank Dr.Rajasingham Narendran for presenting a brief analysis of ‘Thesawalamai law’. A Tamil lawyer friend gave me this Sri Ramanathan’s book sometime back, but unfortunately it had gone missing from my book shelf since. Anyway, I am no legal eagle. So, my interest is not in the case studies of the feuds between Tamils or how it affects their matrimony but how it kept Sinhalese away from the North.


Sri Lanka is a democratic country. As such, a Tamil or any other continuing his or her customs and traditions is of no concern of Sinhalese. However, if such customs and traditions put up barriers on them, then it becomes their concern. I believe the crux of the ‘Thesawalamai law’ amounts to that point.


Dr. Narendiran had mentioned as Sri Ramanathan wrote; “... it (Thesawalamai) was codified and promulgated by the Dutch in 1708.” He marked; immigrants of Tamils from the Coromandel Coast of India had made use of it. He also quoted as Governor Simons ordered to accept Tesawalamai as a customs of the Malabar inhabitants of the province of Jaffna.


If ‘Thesawalamai’ is a law that emanate from culture of the indigenous Tamils of Jaffna as Dr. Narendiran says, how come Governor Simons accept it as a customs of the Malabar inhabitants? How come Ramanathan says; Tamils from the Coromandel Coast of India had made use of it? Surely these do not tally. It is obvious that there had been no difference between the so-called ‘indigenous’ Tamils of Jaffna and Malabar Tamils of the Coromandel Coast at the time.


I must say, Dr. Narendiran’s writing proves what Professor Nalin de Silva had been claiming all along; migrant Tamil laborers had swamped in and swallowed the real indigenous people (Sinhalese) of Jaffna pattam. So, could the Tamils of Jaffna today are not the Bhumiputra or the descendents of Ravana or Eelara that they claim? Or, are they the descendants of the recent immigrant laborers from Coromandel Coast that had come to Jaffna to grow tobacco for Dutch colonials.


Professor Silva says; Thesawalamai is a dominant Muslim law in Malabar. The Dutch had introduced it to Jaffna pattam to retain Indian Tamil laborers that used to go back home at the end of every season after harvesting tobacco. And, Thesawalamai was introduced as a master a plan to retain those immigrant laborers permanently in Jaffna pattam. It gave the migrant labors the land rights, an incentive to settle down in Jaffna pattam.


Different laws that Dr.Narendran mentioned as common law in Sri Lanka; Roman-Dutch law; the Tesawalamai (Jaffna); the laws and usages of the Muslims; the Mukkuwar law (Batticaloa); and the Kandyan law does not have raciest tones. But Thesawalamai law has all the racist characters. Thesawalamai law may not prohibit Sinhalese buying lands in Jaffna pattam by word. But if we go by five points that Dr. Narendiran wrote as Sri Ramanathan cautioned; it is clear that the Thesawalamai law is manifestly designed to keep others out. And that is what we have seen in practice.


Tamils would capitalize on Hegel’s description to promote their homogeneous Tamil province or Bantustan. Afrikaners may have also used Hegel’s description to justify Bantu-lands though for a different reason. But Zulus and other tribes that were compelled to live in Bantu lands rejected them for they wanted one country and one system just like Sinhalese.
Leela

Posted by: Leela | November 21, 2010 01:54 AM

>> . Whether he or she was married to a person governed under Teswalamai.

This excludes all living out side Jaffna, meaning land can be sold only to tamils for 99.9 percent of jaffna citizens are tamils.

Posted by: garawi | November 21, 2010 04:19 AM

Leela,

There is no denying that there were migrations from Malabar and what is now Tamil Nadu,into the Northern Province. Similar migrations have also taken place into the South of Sri Lanka. Some Sinhala castes are of Tamil origin. The 'Koviya' caste in Jaffna is believed by many to have originated from the 'Goviya' caste among the Sinhalese. Sir.P.Ramanathan was a second generation Indian immigrant! These are facts of history. However, these facts cannot and should not be taken to the extreme to say that all Tamils of Sri Lanka are immigrants! This is the extremism that vitiates a rational approach to resolving Sri Lanka's majority-minority issues.

Further, I do not see in the Tesawalamai any attempt to keep any specific outsiders out of the Northern province. It points to customs that were designed to keep villages distinct in terms of the people who live there. This went to the extent thatTamil gangs operating in London were named after their villages in Jaffna. I am sure any Sinhalese who wants to buy property in Jaffna can yet do so. He/ she would not have any more problems than I would as a Tamil.

It is easy to fall victims to myths and generalizations. We as a people- Sinhalese, Tamils and Muslims- have to find a unity in our diversity. The first steps to this is to accept our differences as normal and our commonality as an asset. Diversity ultimately is a desirable attribute, biologically, culturally and also economically. let us learn our lessons from the tragedies of the past and build bridges to each other, without finding more bridges to destroy.

Dr. Rajasingham Narendran

Posted by: Dr.Rajasingham Narendran | November 22, 2010 12:40 AM

To Leela.....If the Tamils would have been brought and setteled in Jaffna from Kerala, with whom Sampumal Kumaraya fought 700 years ago.

Posted by: Selva | November 22, 2010 11:38 AM

Hi Leela,
After the July 1983 riots, the Tamils who deserted their houses and went to north/east came back after 2 months and sold their houses and other assets for cheap price and mostly muslims bought them not Sinhalese. As the war continued the Tamils came back to Colombo and bought houses from mostly Sinhalese and setteled back. If there wouldn't have been any army harressment in Colombo they wouldn't have moved abroad, instead they would have bought thousands of more houses and lived in Colombo. If there would have been a Thesavalamai in Colombo Tamils couldn't have come back. Anybody can live anywhere policy can only make the poor Sinhalese to move further and further into the villages. Creating Sinhala only, Tamil only and Mislims only provinces and applying thesavalamai,only could bring real pease in Sri Lanka.

Posted by: Selva | November 22, 2010 12:57 PM

I had admired Dr. Narendran's tireless works but this article seems half baked and misleading. I have to admit that I was never able to read and fully comprehend this articles though I came back and re read this after reading a somewhat incomplete translation of it in a tamil web site.

He has relied solely on Sri Ramanathan's book and quoted some sections out of context. There are many other books and articles by eminent scholars like Prof H.W. Tambiah, S.J.Tambiah,Prof Nadarajah and many more in addition to the many decided cases on the customs of the said people that was codified in 1706.
It is my view that an incomplete and out of context analysis on a topic of this nature would only harm the reconciliation process.

Posted by: Anonymous | November 22, 2010 02:03 PM

The Dutch and tobacco farming as a cash crop is under 300 yrs while Tamils have been there for millenia. Whether it was Sinhalese in Jaffna, as suggested here, became Tamils there or Tamils in the Sinhala South (including the Central Hills) became Sinhalese
is yet another matter. Nilaperumal Pandarams becoming the quintessential Bandaranaiakes and the Kandyan Dissawes signing in Tamil complicate matters furher to the exasperated historian.

ISS

Posted by: Ilaya Seran Senguttuvan | November 22, 2010 08:43 PM

The following article on Tesawalamai was forwarded to me by a friend. I hope this will clarify matters further and further bake what was half-baked and clarify what was misleading in my article.

A codified law, not able to take into account social changes :
Thesawalamai not based on 'homeland theory'

by Gulendran Tambiah

'Thesawalamai', in Tamil, literally means the customs of the land. It
is ancient in its origin and has prevailed in North Ceylon for
several centuries long before the evolution of any political parties
or liberation movements. Because of its popularity among the local
inhabitants, the Dutch first codified it in 1706 and the British gave
it legal validity by the Thesawalamai Regulation No. 18 of 1806.
Ordinance No. 5 of 1869.
Thesawalamai is both territorial and personal in character viz: it is
applicable to all lands situated in the Northern Province, whether
such land is owned by a Sinhalese, Tamil, Muslim or Burgher, and it
does not attach itself by reason of descent and religion to the whole
Tamil population. it is a personal law applicable to the `Malabar'
(Tamil) inhabitants of the Province of Jaffna.


The Matrimonial Rights and Inheritance Ordinance of 1911 (as amended
by the Ordinance No. 58 of 1947) and the Jaffna Matrimonial Rights
and Inheritance Ordinance No. 1 of 1911 are the sources and basis of
the Matrimonial Rights of Tamil Spouses and gave statutory validity
and where required, affected amendments, to Thesawalamai principles
concerning the same subject. The Thesawalamai Pre-emption Ordinance
of 1948 amended and consolidated the Law of Pre-emption relating to
land affected by the Thesawalamai. Case law on the various aspects of
Thesawalamai has been richly developed over a hundred years by our
judges. It is difficult to imagine that principles of Thesawalamai
could further be developed or amended by a person, persons or by a
process other than by the processes aforementioned.

Thesawalamai is one of the three main customary Laws which are in
current operation in Sri Lanka. The other customary laws are the
Kandyan Law and the Muslim Law. All three customary laws operate
strictly within limited parameters. The general law of the land apply
in all other matters. Thesawalamai always recognised that the
criminal law (wherein matters such as capital punishment and rape are
dealt with) was the same as is elsewhere in Sri Lanka.

Thesawalamai, in its origin, was intended to serve an agricultural
community. It dealt with customary rules governing caste, slavery,
marriage, marital rights, guardianship, adoption, the law of parent
and child, rules of intestate succession, pre-emption, forms of
mortgage peculiar to Thesawalamai such as otti, and servitudes
peculiar to Thesawalamai, the law of property and contractual
obligations which were current among the agricultural communities
such as those arising from loan of beasts, paddy etc.

Slavery was abolished by Regulation No. 20 of 1844. In modern times,
many of the other provisions contained in Thesawalamai are obsolete.
Thus adoption, the law governing obligations and the otti form of
mortgage are currently not in use.

The customary form of marriages (e.g. the tying of the 'Thali' etc)
among the Tamils governed by Thesawalamai are still recognised and
followed. Nowadays, just to make sure, such ceremonies are almost
always followed by registration. Until, recently certain upper class
Tamil families in Colombo used to get down persons of lower castes to
perform certain ceremonial duties which are incidental to the
marriage ceremony. All other requirements of marriage, such as
consent, prohibited degree of marriage etc are governed by the
General Marriages Ordinance.

Territorial and personal

Thesawalamai is both territorial and personal in character viz: (i)
it is applicable to all lands situated in the Northern Province,
whether such land is owned by a Sinhalese, Tamil, Muslim or Burgher,
and (ii) it does not attach itself by reason of descent and religion
to the whole Tamil population. it is a personal law applicable to
the 'Malabar' (Tamil) inhabitants of the Province of Jaffna. Decided
case law inform us that though Thesawalamai applies to Tamils in the
Mannar area, it does not apply to the Tamils in the Trincomalee or to
those in Batticaloa or to those Tamils of Indian origin resident in
the hill provinces.

Again, Thesawalamai does not apply to all Jaffna Tamils but only to
those Tamil Inhabitants of the Jaffna Province. The word 'Inhabitant'
is of the essence. Rules regarding domicile, as found in Private
International Law, have been developed and applied, mutatis mutandis,
to determine as to whether a person is an inhabitant of Jaffna.

Only one domicile

The late Dr. H.W. Tambiah, QC, who was the leading authority on the
subject of 'Thesawalamai', was of the opinion that Thesawalamai
recognised only one domicile i.e. a Ceylon (Sri Lankan) domicile and
that it is wrong to assume that Thesawalamai is based on a 'homeland
theory' as has been propounded by some politicians. The
(Thesawalamai) concept has been greatly misunderstood with the
consequence that incorrect inferences have been drawn.

One widespread wrong belief is that Sinhalese cannot buy land in the
Northern Province consequent to the law of pre-emption contained in
the Thesawalamai. Pre-emption under Thesawalamai, may be explained as
a right recognised over immovable property situated in the Northern
Province of Sri Lanka by which a co-owner, co-sharer or adjacent
landowner who has a mortgage of the land in question, has the right
to demand the seller to sell it to him at a price which may bona fide
purchaser is prepared to pay for the same when the owner wishes to
sell the same.

The correct situation thus is that any person otherwise eligible to
buy land elsewhere in Sri Lanka, could buy land in the Northern
Province if he or she is prepared to pay a higher price than the
persons who are entitled to pre-empt. Pre-emption, would also benefit
Non-Tamils because of the territorial character of Thesawalamai. Any
person, irrespective of race, owning land in the Northern Province
has to comply with the postulates of pre-emption as they are
presently applied.

Dr. Tambiah believed that resistance towards the devolution of powers
in the Northern Province was significantly influenced by
misconceptions regarding the true nature of the law of Thesawalamai.
It is only possible to remove such misconceptions if people are
educated about the origin, history and significant aspects of the law
of Thesawalamai.

Thesawalamai being a codified law, however, has not been able to
evolve with time or take into account social changes which have, over
the years, taken place in Sri Lanka. Under Thesawalamai, the woman,
on marriage, passes from the guardianship of the father to the
guardianship of the husband who becomes the sole and irrevocable
attorney of the wife.

It is ironic, for example, that, however highly qualified a woman may
be, as for example, be a Chartered Accountant, or an Investment
Adviser and deals with millions or billions of rupees on behalf of
her employer but is unable to do so on her own behalf with regard to
her own personal investments or indeed sign away ownership of land
without the husband's written consent.

Urgent reform

Sure, the time is ripe for urgent reform in this and other areas of
Theswalamai. But changes must necessarily take place through
legislative intervention and/or with judicial creativity. Such
changes cannot be done by a person or persons or by a political party
or by a liberation movement, made to stand by themselves in the wilds
of Vanni and yet remain under the banner of 'Thesawalamai'.

The threads of 'Thesawalamai' are inextricably interwoven into the
legal system of Sri Lanka and are very much part of the rich fabric
that is the legal system in Sri Lanka. Thesawalamai is still a way of
life among a good proportion of the Jaffna Tamils. In a recent case,
Chief Justice Sharvananda (as he then was) decided that, once it is
established that a person had an initial Jaffna inhabitancy, an
intention to abandon such an inhabitancy should not be lightly
presumed.

This could mean that Thesawalamai will continue to apply to certain
persons who regard Jaffna as their home although, such persons have
not been able to physically travel to Jaffna over long periods of
time because of prevailing war conditions, difficulties of travelling
etc.

Some properties in Colombo and other parts of Sri Lanka may be
governed by Thesawalamai principles consequent to the fact that
Thesawalamai, by virtue of its personal character, applies to the
owners of such properties.

Let not ignorance prejudice, and misinterpretation of this rich
system customary law be impediments to Thesawalamai's harmonious co-
existence with the other laws of Sri Lanka.
http://www.sundayobserver.lk/2002/08/11/fea04.html

Posted by: Dr.Rajasingham Narendran | November 23, 2010 11:55 PM

Dr.Rajasingham:
In addition to Wijaya’s we have Yaksa, Raksa, Naga, Deva and Tamil blood in our vains. So, I do not think Sinhalese want to pretend to be pure and refined. Jackson Anthony had made a good effort towards making of Sinhalese in his film ‘Abba’. Now it’s all one; and that’s what matters.

The biggest concern for all Sinhalese is; when Tamils failed to have Eelam, they concentrated to push more and more towards homogeneity. When LTTE was annihilated with all its combat leaders, Sinhala people thought Tamils would give up their fight for Eelam and negotiate for a settlement in the earnest. They thought; if Indian born late minster Thondaman could have reached a settlement for the setbacks of ‘estate Tamils’ of recent Indian origin through a dialogue, there is no reason why Tamils of the North couldn’t have done the same. Even LTTE critics chose to push for a homogeneous Tamil province. It is not just Eelam the demand for homogeneous Tamil province is an anathema to Sinhalese.

Selva:
I regret very much about July riots. It was not the work of the majority of Sinhalese but a few UNP hooligans. To say the least, I’ve seen it all and ashamed of it. This is not to justify it; but did not LTTE pave the way for it? And had not its subsequent gory acts made up more than enough for it?

ISS:
You are saying “Nilaperumal Pandarams becoming the quintessential Bandaranaiakes and the Kandyan Dissawes signing in Tamil complicate matters ...”

Have you forgotten about JRJ’s roots? Also, didn’t you know that the pact between the Portuguese and the Arya Chakravarthi King in Jaffna had been drafted in Chingala and Portuguese and not in Thamiza?

Since you wrote about ‘Tamils have been there for millennia’, permit me to write something about that as well. In an interview with ‘Rivira’ dateline 7th May 2009, then MP for Batticalo, MR. Ariyanandran also said; north had been amalgamated to East of Sri Lanka for more than one thousand eight hundred years. And Tamils had their kingdoms in the north of Sri Lanka for more than five thousand years. I thought Wikipedia should put those detail in their site. But they don’t.

I thought; if only Tamils have been living in Sri Lanka for just one thousand years, they should have evolved to be a new nation with a new identity, just like all other island nations. Small group of people that landed in Maldives islands developed a unique language and culture to become Moldavians in less than thousand years.

After five thousand years language and culture of Tamils of Sri Lanka are akin to that of the Tamils of India? Should not their language and culture be evolved like that of the Moldavians? The answer is clear from many written chronicles such as Mahawamsa: Only for specific periods, Tamil invaders had Kingdoms in Sri Lanka. When they were beaten, either they went back or were assimilated to Sinhala society. What do you say ISS?
Leela

Posted by: Leela | November 24, 2010 01:35 AM

To: Dr. Narendran....Doctor Coromondal coast means, Tamilnaadu and Aandra coast. Malabar means present Keraka. Kerala was called Seranadu and they were Tamil speaking. When the people were brought here they were Tamil speaking. Even the Negombo Tamils were brought from Kerala only but they were brought by Sinhalese for fishing when the Sinhalese newly settled in the wet zone. Only during dutch rule the Tamil bacame Malayaalam in Kerala. Serandeep came from the name Seran theevu. Seran theevu was part of Seranaadu even before 2200 years ago. Only a Malayali told me this. 2200 years ago when a Sera king visited his Island he took the first coconut plant to India. Even to this island the coconut was new at that time.

Posted by: Selva | November 24, 2010 01:36 AM

Leela,

There is little point in trying to re-invent the wheel. I will agree with you JRJ's crowd will find it somewhat difficult to detach themselves from the Thamby Mudaliar lineage.

Dr Narendran,as I understand, is doing his best to bring the Sinhalese and Tamil together.But the 200 Sinhala families from the South, now camped in Jaffna town (by whom???) have plans not only to frustrate his good intentions but also to get rid of Thesawalamai in due time - with false pretensions.

ISS



Posted by: Anonymous | November 24, 2010 07:08 PM

Leela- Thanks for your enlightened comments. The Sinhalese and Tamils are like Abel and Cain, the children of Adam and Eve, related to each other in more ways than we can imagine. We will I am sure learn to live together, as citizens of Sri Lanka, sooner than many think. However, please do not confuse or confound the noises of the Tamil politicians and some 'lost in space' elements in the Tamil Diaspora to the voice of the majority of Tamils in Sri Lanka- particularly those from the north and east. Tamil polticians have been the curse of the Tamils for too long. Unfortunately, the government, for reasons of its own, continues to yet encourage and promote such elements, even after the bloody war. An opportunity for the Tamils to clean their political stables, is being largely thwarted by the government and what I think are its short sighted- I hope not its perverse- actions.

The Tamils also need time to come out of their shell and out of the tragedy that has befallen them. The ball is in the court of the Sinhala people to win the trust of the Tamils and assure them they have a secure and rightful place within the larger Sri Lanka. It is a deeply felt insecurity in terms of the larger Sri Lanka, that drives many Tamils to adopt a bunker mentality.

Further, the Tamils in the north and east of Sri Lanka have a culture that is quite distinctive. We speak a more classical Tamil and have cultural habits quite different from those in Tamil Nadu. We are also largely Saivites by religion. As much as all Chinese look the same to us, many Sinhalese are unable to see the differences between the Tamils of the north and east in Sri Lanka and those in India. There are also distinctive differences between the Tamils of the north and east. We Tamils from the north and east also are very sensitive about our distinctive identity, and are provoked when identified with the Tamils in India. We may speak the same language and worship some common Gods, but we are definitely different from the Tamils in India. Our food, like that of the Sinhalese are more akin to those in Kerala. In fact the Sinhalese share more cultural practices with the Keralites than the Tamils. I remember being amazed at how closely the cultural patterns of the Sinhalese resemble those of Keralites, on seeing the Malayalam film 'Chemmeen', a couple of decades back. In fact the Sinhala Kings had close links with Seranadu and King Gajabahu introduced 'Pattini deviyo'(Kannagi) worship among the Sinhalese after visiting Seranadu. We must also not overlook the fact that Tamil Hindus and Sinhala Buddhists in Sri Lanka, worship the same Gods (Pillyar= Gana deviyo, Murugan=Katharagama deviyo etc.

Selva- Thanks for your comments. I am aware the Sera (Chera)nadu -one of the three Tamil Kingdoms(others -Chola and Pandiya) became part of present day Kerala and the Tamil spoken there gradually evolved into Malayalam, due to Sanskrit influences. However, from what I understand, the whole of present day Kerala, was not the Seranadu of old. The Tamil spoken in Jaffna yet retains classical Tamil words, which have disappeared from Tamil spoken in Tamilnadu, but yet found in Malayalam. From a distance, the way Tamil is spoken in Jaffna, resembles the intonation of Malayalam.

-Dr.Rajasingham Narendran-

Posted by: Dr.Rajasingham Narendran | November 25, 2010 12:27 AM

What does it matter where the Tamils came from, or how long ago they came? They have been here all our lives, all our parents' lives, all our grandparents' lives, and for centuries before. They have been here for as long we know. They are here now, and they are part of Sri Lanka, and they are not going away. So we must deal with it.

Posted by: David Blacker | November 25, 2010 02:23 AM

What does it matter where the Tamils came from, or how long ago they came? They have been here all our lives, all our parents' lives, all our grandparents' lives, and for centuries before. They have been here for as long we know. They are here now, and they are part of Sri Lanka, and they are not going away. So we must deal with it.

Posted by: David Blacker | November 25, 2010 02:25 AM

Thank you Dr. Narendran for reproducing the Article by Gulendran Tambiah which covers the omissions but in order to be complete, one has to cover/compare all of our local Laws such as Kandyan Law, Muslim Law and Mukkuva Law(you find them in Negombo too). There are Local Laws everywhere. For instance the Quebec Civil Law is different from that in the rest of Canada and there are different Laws governing the Aboriginals.

What is misleading is the misconception that there is a misconception, that gives rise to misunderstandings to people like Leela above. The misgivings are due to our inferiority complex that our indegenous Laws are not in par with that of foreigners such as Roman Dutch Law and English Law.

As in the case of all Laws there will be contradictions and conflicts with new ones and thats where Case Laws come in handy. There are Preclusive clauses, Ultra vires clauses, Exclusive clauses, Effective date clauses and the like to handle such situations and we need not withdraw a Law in totality because of changed situations. Can our Muslims now get a divorce by saying 'Thalaath' three times or like in some parts of Kerala, a women get a dovorce by putting her husband's mattress(paai)outside in the varanda. How easy it would be for the couple and how hard it would be for the Lawyers.

We can see that the sections covering Land in the Province irks some people who considers it as hindrance to their objectives. Fortunately or unfortunately for the past few decades we did not have much decided cases as they are mostly 'settled' by barrel and sometimes by snake treatment.

We can only assume why these customs and practices which were codified 300 years ago, came into being.

One could be the women folks' vulnerability, whether they are Chartered Accountants or Investment Advisors, when it comes to their own relatives such as siblings, especially brothers(thaai maaman concept). We see many women wiping out their savings in order to help their younger sister's wedding or brother's business without the knowledge of their husband, thus putting their own childrens' future at peril. I doubt a Batticaloa women or Sinhalese women or Madras women would do such things and there lies our uniqueness and joint ownership safeguard which some confuse as slavery.

Another reason could be the necessity to safeguard the elder parents who had previously gifted all their properties to their children. There were no Senior Homes, weren't they? Thus we had the servitudes or attachments such as right of enjoyment even when they are not the real owner after gifting it.
The golden Thali was the ingenuity of them to escape the 'Religious Tax' on jewellery/gold imposed by the Dutch. So is the Srithanam or Dowry which is not taxed like other Donations.

Most important is the section covering the Land, because of the scarce resources-limited aerable land and water avaiable in the District . If they are subdivided and goes to an outsider the 'economies of scale' is lost and there will also be problem in sharing the common Well.

Selva had righly pointed out above, the difference between Coramental and Malabar areas. I guess it was a typo when you mentioned Thediya Thettam & Marumakkal Thayam but the meaning is obvious.

Posted by: Anonymous | November 25, 2010 10:49 PM

Re. David Blacker's comment. Tamils are certain of their antiquity and have no need to labout the point. They do, however, point this out now and then because their ancient home and land is under threat. From charges of Tamils here "having come only 400 years ago as tobacco farmes by the Dutch" to
they were here a few decades before the arrival of the Portugese. Visiting Indian Foreign Minister Shri SM Krishna sees their history differently - if one reads his speech in Jaffna at the opening of the Consular Office. Thirukeetheeswaram Temple alone is over 3,000 years (Sir Paul Peiris) that will be disputed only by the jaundiced.

ISS

Posted by: Ilaya Seran Senguttuvan | November 28, 2010 10:32 PM

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