Scrap the Thesawalamei Law that is Discriminative, Racist and Outdated
Posted on January 1st, 2012
Dilrook KannangaraƒÆ’-¡ƒ”š‚
Not every Sri Lankan is equal before the law at the moment. Those who have the option of governed by the Thesawalamei Law have far more rights than others. The only remaining law in the entire world that legitimises caste discrimination is the Thesawalamei Law of Sri Lanka! It is a matter of shame on all Sri Lankans for keeping this highly discriminative law that glorifies caste divisions when the whole world is against it. Before major constitutional and legal changes are made for the purpose of reconciliation, simple yet highly effective available means should be used. Scraping the Thesawalamei law is the first step to effective reconciliation, human rights, womenƒÆ’‚¢ƒ¢-¡‚¬ƒ¢-¾‚¢s rights and equal rights to all. The longer it is kept, the more the hatred will be between ethnic communities and within the Tamil community between so called high caste Vellahlas and low caste Tamils.
Understanding Thesawalamai Law
During the Dutch period a very large number of South Indians slaves were brought to the country for tobacco cultivation. Most of them were from Kerala (mainly the Malabar coast) while a significant number were also brought from Tamil Nadu (mainly from Nagapattinam and Tanjore). Following the ƒÆ’‚¢ƒ¢-¡‚¬ƒ”¹…”divide and ruleƒÆ’‚¢ƒ¢-¡‚¬ƒ¢-¾‚¢ colonial strategy, Dutch invaders codified it in 1706 and a hundred years later British colonial rulers legitimised it. Interestingly the Dutch commissioned the writing down of a Tamil version of Lankan history by the name of Yalpana Vaipavamalai to rival the already well established Mahavamsa based history. This is the only instance in the world where the history of a subject group was written down according to the fancies of a colonial ruler.
Thesawalamai Law is a personal law applicable to ƒÆ’‚¢ƒ¢-¡‚¬ƒ”¹…”MalabarƒÆ’‚¢ƒ¢-¡‚¬ƒ¢-¾‚¢ (people who came to the island from the Malabar Coast of South India who now call themselves Tamils) inhabitants of the ƒÆ’‚¢ƒ¢-¡‚¬ƒ”¹…”Province of JaffnaƒÆ’‚¢ƒ¢-¡‚¬ƒ¢-¾‚¢. The preamble of the Thesawalamai law says it is applicable to “Malabar inhabitants of Jaffna.” Interestingly, the Jaffna Tamil accent is closer to modern day Malabar coast Keralites than to Tamil Nadu Tamils though the language is Tamil. Thesawalamai, in its origin, was intended to serve the agricultural community. The agricultural community of the ƒÆ’‚¢ƒ¢-¡‚¬ƒ”¹…”MalabarsƒÆ’‚¢ƒ¢-¡‚¬ƒ¢-¾‚¢ of the Jaffna district are Vellahlas. Dutch invaders were earning a fortune from slavery driven tobacco industry that was thriving in Jaffna. Hence they codified this law to benefit the agricultural workers (Vellalhlas). This was how caste discrimination has been cleverly engraved into this law which was introduced to divide and rule the island. Today it is not just a territorial law but also a personal law. The slavery element of the Thesawalamai Law was abolished by Regulation No 20 of 1844.
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 recent Indian origin resident in the Central Province. Again, Thesawalamai does not apply to all Jaffna Tamils but only to those Tamil Inhabitants of the Jaffna Province (Understanding Thesawalamai by Guiendran Tambiah).
The entire law is obsolete and irrelevant today and must be scrapped as soon as possible for the sake of coexistence, equal rights and peace.
It makes this doubly dangerous to coexistence, equal rights and peace. Since it is territorial as regards the north and personal as regards to Tamils from the north living in other parts of the country, the highly discriminative Thesawalamai law also applies to their properties in Colombo, etc.! While it holds the entire northern province under its territorial law arm, it extends to other parts of the country through its personal law arm like an invasive cancer. Reciprocal arrangements for Sinhalese, Muslims and non-Jaffna Tamils donƒÆ’‚¢ƒ¢-¡‚¬ƒ¢-¾‚¢t exist.
Thesawalamai Law Prevents Sinhalese from Acquiring Land in the North
The north has turned into a mono ethnic Tamil only enclave today. Running away from this fact is not going to help in reconciliation. In fact this is the first problem that must be rectified for reconciliation. The law of pre-emption contained in Thesawalamai Law prevents Sinhalese and Muslims from acquiring land in the north.
Since Thesawalamai applies to the inhabitants from Jaffna and since all Sinhala and Muslim inhabitants from Jaffna have been untraceably wiped out by the Vadukodai resolution and subsequently by the LTTE, the foolish claim that any Sinhalese or Muslim can buy land in Jaffna does not hold water. As long as the Thesawalamai law is there, Sinhalese or Muslims will never be able to integrate into the Tamil only mono ethnic Jaffna peninsular because of the simple fact that there are no Sinhalese or Muslim ƒÆ’‚¢ƒ¢-¡‚¬ƒ…-inhabitants of JaffnaƒÆ’‚¢ƒ¢-¡‚¬ƒ”š‚. Those who argue otherwise are cruel like the proverbial fox which offered a drink of soup to a crane on a flat plate!
In other words Tamil-only Thesawalamai law discriminates Sinhalese, Muslims and Tamils other than Jaffna Tamils even in Colombo. Thesawalamai law which is a personal law applies to a Jaffna inhabitant living in Colombo. This tragicomedy must be stopped by scrapping the Thesawalamai law.
Thesawalamai Mentality is the Root Cause of War
The Thesawalamai Law creates a sense of uniqueness around Jaffna and links Tamils with Jaffna. However, there is absolutely no such link and until the Dutch invaders, there is no evidence of any such connection. Thesawalamai Law was intended to complement the ƒÆ’‚¢ƒ¢-¡‚¬ƒ”¹…”divide and ruleƒÆ’‚¢ƒ¢-¡‚¬ƒ¢-¾‚¢ strategy of the Dutch and British invaders which worked very well. In fact it worked too well and extended beyond the colonial era. Induced by the territorial and ethnic discrimination of the Thesawalamai Law, those who benefitted from it (South Indian Malabar immigrants who resided in Jaffna) developed an attitude of uniqueness and superiority whereas there was nothing unique or superior about them! It was this attitude that confronted with fellow Tamils and then with democratically elected governments of the country.
The Federal demand and the subsequent separate nation demand that led to bloodshed and violence were based on the Thesawalamai Law mentality of uniqueness of the north and uniqueness of Tamils linked to the north via the law. Thesawalamai Law created the false notion among Tamils that they are the ƒÆ’‚¢ƒ¢-¡‚¬ƒ”¹…”chosen peopleƒÆ’‚¢ƒ¢-¡‚¬ƒ¢-¾‚¢ of the north or the traditional inhabitants of the north.
Moulded by the Thesawalamai Law thinking, Tamils in the north saw Sinhalese people moving into the north as colonization. This attitude remains the biggest obstacle to peace even today. Once the Thesawalamai Law is scrapped, this unhealthy mentality will dissipate allowing ethnic integration and coexistence.
Interestingly a similar law to Thesawalamai Law as regards land is found in Palestinian territories. Quoted from Weiner, Justus Reid (2005), Human Rights Watch. 1997. p. 340, “Israel Investigates Death Of an Arab Land Dealer” – The New York Times and Wikipedia.
ƒÆ’‚¢ƒ¢-¡‚¬ƒ…-Palestinian land laws are laws which relate to ownership of land under the Palestinian Authority (PA). These laws prohibit Palestinians from selling Palestinian territory lands to “any man or judicial body [corporation] of Israeli citizenship living in Israel or acting on its behalf.” These land laws were originally enacted during the Jordanian occupation of the West Bank (1948ƒÆ’‚¢ƒ¢-¡‚¬ƒ¢¢”š¬…”1967), and are deemed by the Palestinian Authority as being necessary to prevent further expansion of Israeli settlements in the Palestinian territories and to “halt the spread of moral, political and security corruption”. The law carries a sentence of the death penalty.ƒÆ’‚¢ƒ¢-¡‚¬ƒ”š‚
This is exactly what happened within Sri Lanka under the Thesawalamai Law that artificially created a separate jurisdiction based on territory and ethnicity. Marginalisation from the society is seen among northern Tamils who sold their property to ƒÆ’‚¢ƒ¢-¡‚¬ƒ”¹…”low casteƒÆ’‚¢ƒ¢-¡‚¬ƒ¢-¾‚¢ Tamils or non-Tamils. Palestinian land laws predict where Sri Lanka will be unless this discriminatory law is scrapped forthwith.
To an extent the Thesawalamai Law is a twisted version of the Boomi Puthra law of Malaysia. The only difference being the latter positively discriminates the majority while the former discriminates against the majority. Both forms are bad and must be avoided.
Thesawalamai Law is an Obstacle to Equal Rights and WomenƒÆ’‚¢ƒ¢-¡‚¬ƒ¢-¾‚¢s Rights
International humanitarian organisations affiliated to the UN have found that Thesawalamai Law is discriminatory against women. Under Thesawalamai, the woman upon marriage, passes from the guardianship of the father to the guardianship of the husband who becomes the sole and irrevocable attorney of the wife (Understanding Thesawalamai by Guiendran Tambiah). She is merely a slave under the ƒÆ’‚¢ƒ¢-¡‚¬ƒ…-guardianshipƒÆ’‚¢ƒ¢-¡‚¬ƒ”š‚ of either her father (until married despite being an adult of over 18 years) or the husband and cannot manage her own finances or land rights which is prohibited under the Thesawalamai Law. Total irrelevance of this law which was intended for slaves in the 17thƒÆ’-¡ƒ”š‚ century can be seen from the fact that Sri Lanka produced worldƒÆ’‚¢ƒ¢-¡‚¬ƒ¢-¾‚¢s first woman prime minister who not only managed finances of her own but of an entire nation.
Salvaging parts of this obsolete law is not the right approach to the problem. Time and again it has been proven that this is a totally irrelevant law to Sri Lanka which was imposed on the island by invaders. From time to time sections of this law have become obsolete. In todayƒÆ’‚¢ƒ¢-¡‚¬ƒ¢-¾‚¢s context, the entire Thesawalamai Law is obsolete and it must be scrapped.
The government of Sri Lanka must create a level playing field for every Sri Lankan irrespective of ethnicity, caste or place of origin. That is the only way to equal rights and reconciliation. Scrapping it also allows people to integrate well with each other right throughout the country. At the same time, other personal laws should also be reviewed and scrapped. At the moment not every man and woman is equal in from of law. Ethnicity and place of origin within the island determine the rights of citizens which is a clear violation of equality.
The Constitution allows enough protection of all the cultures of the country. There is no need for colonial laws today. This nation scrapped the colonial constitution in 1972 and after 40 years it is high time to scrap the Thesawalamai Law.
January 1st, 2012 at 11:33 am
//Thesawalamai Law prevents Sinhalese and Muslims from acquiring land in the north.//
Muslims live in a seperated area within Jaffna. Muslims are different from Tamil community in Jaffna.
so called Lawcast among Tamils are welcome by muslims in Jaffna and Sinhalese in Sri Lanka without any discriminations. Without considering the social & Economic situation of all communities, demanding
Landrights and Police power in the North by TNA is questionable.
January 1st, 2012 at 8:05 pm
The two provinces the North and East were never a one unit but merged together under emergency regulations after the Rajiv Gandhi government of India forced the then President J.R.J in 1987 to sign an Indo Lanka agreement that included an unhistorical clause that the North and East was the homeland of the Tamil (speaking) people.
Except Minister Karuna and a few, whether they are the so-called moderates like Sangaree who wanted devolution on Indian model and extremists like Sivagilingam who backed LTTE to have ISGA, almost all elected and other Tamil leaders demand North and East Provincial Councils be merged and ‘Land and Police powers’ granted to it.
This well written article on the development of ‘Thesawalamai’ and its consequence by Dilrook clearly explains why Sri Lankans of all cast, creed and race should oppose alienation of land powers to Provincial Councils.
I wish he or another writes the effects on devolution of police powers. In my opinion, granting police powers to provincial powers would be a definite danger to the unity of Sri Lanka. To give a simple example, the belated entry by the armed forces during the terrorists attack on Mumbai was a consequence of granting police powers to its regional state governments India. Do we want the government of Sri Lanka to suffer such a catastrophe?
Those Tamils that demands devolution of power to North or North and East are clearly demanding special rights for a particular set of Tamils. How could devolution of power to a section of Tamils correct the so-called discrimination on majority Tamils who live in other areas of the country? The government must scrap 13A and introduce village level based unit such as ‘Grama Sabha’ to empower people not racist politicians.
Leela
January 2nd, 2012 at 12:39 am
Leela
Will do. Biggest sufferers of TNA/TULF gaining police powers would be low caste Tamils.
I didn’t think of the aggravated impact of the 13 Amendment on the already muddled Thesawalamai Mentality. Thanks for your insight.
January 2nd, 2012 at 5:07 pm
I couldn’t imagine the dire impact on all others, other than Malabar Tamils by continuation of Thesawalamai if land powers are also vested with the same lot that are empowered by it. That is why I looked at it and commented in that angle.
A minister of this government and a close associate of Cyril Mathew during JRJ era told me a long time ago that when Mathew asked JRJ to do away with it, he is said to have said that Thesawalamai is a unique law and therefore we must be proud of it and must retain it at all cost. What is the viewpoint on it by this government?
Leela
January 3rd, 2012 at 7:21 am
Now the colonial Dutch have left Lanka. The purpose of the Thesawalami Law which was to entice Tail labor to stay on in Lanka, has ceased to exist – so why not scrap it by law ?
Re JRJ’s attitude toward Thesawalami Law : We think JRJ was caught up in Cold War politics of that time, and having gone westward for politico-economic salvation (as there was not much choice left in the matter at that time, and being a person who admired the west after the WW I&II, his San Francisco speech re forgiveness of Japan, etc.), it is possible that he bowed to various preferences of the westernized Jaffna/Colombo Tamil elites.
In America, during time of General Elections, a series of important National Questions are posed to the Voter, to answer Yes or No, at State level. In this way, lawmakers in Parliament know the thinking of the People. This is the cheapest way a Referendum can be done. GoSL should follow this method to arrive at consensus, not only at Parliament level, but also at People level. This is one way archaic and potentially harmful law such as the Thesawalami Law may be removed. The same should be done with the 13th Amendment which was signed in under Duress and therefore invalid in any court of law.
In Lanka, it should be one Law for all in all matters essential.
January 3rd, 2012 at 7:22 am
correction: “…. which was to entice Tamil labor to stay on ….”
January 3rd, 2012 at 2:20 pm
Excellent article by Dilrook. Monoethnic Tamil areas are a serios threat to Lanka. I am amazed that Sinhalese are so passive towards this discriminatrion against them.
January 7th, 2012 at 5:51 am
Let us hope that the President is a true and brave leader who would make all citizens equal under the law and get rid of all discriminatory laws, forced upon the nation by colonial powers. Similarly let us hope the President would ensure equal job opportunities for all citizens by ensuring that the jobs on tea estates are not reserved exclusively for Indian Tamil families living on these estates, but open to anyone across the country, especially the hill country sinhala villagers who were evicted from these lands by the British. Thereafter, only can we talk of reconciliation.