Understanding Thesawalamai

by Guiendran Tambiah
(1 ) ‘Thesawalamai’, in Tamil, literally mean the customs of the land. It is ancient in its origin and has prevailed in the 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 Tesawala Regulation No 18 of 1806. Ordinance No 5 of 1869. 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 lands affected by the Thesawalamai Case law on the various aspects of Thesawalamai has been richly developed over a hundred years by our judges.

(2). 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 parmeters. The general law of the land apply in all other matters. Thesawalamai always recognized that the criminal law (wherein matters such as capital punishment and rape are dealt with) was the same as is elsewhere in Sri Lanka.

(3) 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, 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 (eg. The "Thali" ceremony, etc) among the Tamils governed by Thesawalamai are still recognized and followed. Nowadays, possibly 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 from Jaffna 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.

(4) 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 repaying domicile, as found in International Law, have been developed and applied, mutatis mutandis, to determine as to whether a person is an inhabitant of Jaffna.

(5) The late Dr. H. W. Tambiah Q. C. who was the leading authority on the subject of Thesawalamai was of the opinion that Thesawalamai recognized 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 recognized 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 any bonafide purchaser 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 as they 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 Thesawalamai. It is only possible to remove such misconceptions if people are educated about the origin, history and significant aspects of the Thesawalamai.

Thesawalai being primarily 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 or elsewhere. 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 that, however 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 with regard to her own personal investments or, indeed, sign away ownership of land without the husband’s written consent

Sure, the time is ripe for urgent reform this and other areas of Thesawalamai. But changes must necessarily take place through legislative intervention and/or with judicial creativity. Such changes cannot be done by 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, the then Chief Justice Sharvananda 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 of customary law be impediments to its harmonious co-existence with the other laws of Sri Lanka.