Shenali D Waduge

Who are the Malabars”? Who coined the term, and when was it first used? What is its connection to Thesawalamai law — and did this law exist before these so-called Malabars arrived in Sri Lanka? Why are 90% of Tamils excluded from a law that is often portrayed as their own? Most importantly: Do even Tamils know the answers? Let us examine the historical and legal origins of this complex issue — one that continues to shape identity, land rights, and legal inequality in post-colonial Sri Lanka.

Defining Malabars”: A Colonial Label

http://citizenslanka.org/wp-content/uploads/2016/02/Tesawalamai-Regulation-Ordinance-No-18-of-1806-E.pdf

The term Malabar” was a geographic and ethno-geographic label, coined by colonial traders and powers. It did not represent a specific ethnic group. Crucially, neither South Indians nor Sri Lankan Tamils referred to themselves as Malabars.

The term was a colonial construct — a convenient external label used for categorizing communities during administration and legal codification.

With the arrival of European colonizers (Portuguese, Dutch, and British) in the 15th and 16th centuries, Malabar” was used to describe the southwestern coast of India — now known as the Malabar Coast. It was a geopolitical term that found its way into colonial policy, census, and legal systems for colonial convenience.

Thesawalamai Law & the Malabars:

The connection between the term Malabars” and the Thesawalamai law is explicit and central. Thesawalamai — formally titled Customs and Rules observed among the Malabar Inhabitants of the Province of Jaffna” — applies specifically to those labelled as Malabars,” brought to northern Sri Lanka from the Malabar Coast and categorized by the Dutch in 1707.

Thus, both the term Malabar” and the law itself are products of European colonialism, not indigenous Tamil identity. This distinction is critical to understanding how identity and law were shaped — not by Tamil tradition, but by colonial classification.

If Tamils lived in Jaffna before these colonially-labelled Malabars” were settled, they likely neither identified with the term nor were governed by this new law. If any such unwritten customary laws existed colonial powers may have used or withheld these strategically, as part of their divide-and-rule policy.

The origins of Thesawalamai :

Was Thesawalamai an Indigenous Tamil Law?

• Theformal codified version of Thesawalamai did not exist before colonial rule.

Was Thesawalamai Created by Colonial Powers?

• The Dutch codified Thesawalamai in1707 based on what they interpreted as customs of the Jaffna Tamils — applicable to those they labelled Malabars.”
• The British continued this system after 1808.
• Malabar” was acolonial term, not a native one.

If it was merely a localized custom, why was it formalized into law for only a small minority? And why has this exclusivity endured — ignored even by the majority within the Tamil community itself?

Importantly, Thesawalamai did not exist in South India, from where the so-called Malabars and Vellalas originated — confirming that it was a colonial legal creation, not an inherited Tamil custom.

Thesawalamai did not exist in South India — proving it was not an inherited Tamil tradition but a law fabricated under colonial rule.

Colonial Engineering: The Import of Malabars, Vellalas & Thesawalamai

The Dutch and later the British did not merely identify and record the customs of Tamil people in Jaffna — they constructed an entire legal-ethnic framework for their administrative control.

From South India, they imported three key elements:

1. Malabars– A colonial label for Tamil-speaking settlers brought or favored by the Dutch in the North.
2. Vellalas– A dominant South Indian agricultural caste, favored and elevated by the Dutch as intermediaries in Jaffna.
3. Thesawalamai– A supposedly customary” Tamil law, codified by the Dutch in 1707, but with no parallel in South Indian legal tradition.

There is no record of a law called Thesawalamai” existing in South India. This proves that what the Dutch called custom” was in fact a new legal invention, tailored to manage the population they had settled and stratified.

If Malabars were a label, Vellalas a favored caste, then Thesawalamai was the legal tool used to entrench both — for administrative convenience and land control.

This colonial construction has since been misrepresented as an indigenous” Tamil legal tradition — despite excluding 90% of Tamils and being entirely a foreign creation.

Why does a law portrayed as Tamil” exclude 90% of Tamils?

Why have Tamils embraced a customary law applicable to only 10% of its people?

Thesawalamai is a personal law with limited applicability, primarily covering:

• Malabar Jaffna Tamil descendants:It applies to those Tamils who are descendants of the Malabar inhabitants of the Province of Jaffna” and are domiciled in the Northern Province.  Any Tamil living in Jaffna not descendants of Malabars are excluded.
• Territorial Application:Certain aspects of Thesawalamai (like the right of pre-emption on land) apply to all immovable property within the Northern Province,

Despite widespread belief that Thesawalamai is a Tamil law,” it legally applies to only a small minority of Tamils.
How many Tamils know this?

1. Indian Estate Tamils (Up-Country Tamils):A very large segment of Sri Lanka’s Tamil population comprises descendants of the indentured laborers brought by the British from South India, primarily in the 19th century, to work on plantations in the central highlands. These individuals are generally governed by the General Law of Sri Lanka (which is based on Roman-Dutch and English legal principles), not Thesawalamai. These laborers were also called Malabars” in colonial documents — but were entirely different from the Jaffna Malabars” governed by Thesawalamai.
2. Eastern Province Tamils:Tamils residing in the Eastern Province fall under the General Law. Thesawalamai does not apply to them. They too were brought from South India & settler-colonized by British.
3. Other Tamils:Those who do not descend from or reside within the historically defined Malabar” Jaffna community are excluded from its scope. It was in 1911 that they created a new nomenclature for themselves as Ceylon Tamils”.

Thesawalamai & Land Inequality: A Constitutional Dilemma?

One of the most controversial legacies of Thesawalamai is its restriction on land ownership in the North — including pre-emption rights, inheritance limits, and purchase bans.

These restrictions effectively deny land rights to non-Jaffna Tamils and non-Tamils — raising questions of legal discrimination constitutionally.

Can land in a post-colonial, democratic republic be legally reserved for a group defined by a colonial-era identity? This raises not only constitutional concerns but also fundamental questions about equality before the law.

These are questions for the Justice Ministry, Minster & AG’s department to answer.

Do even Tamils know the Answers?

Among Jaffna Tamils

• Some awareness of Thesawalamai as our law,” especially in land matters.
• Little knowledge of the term Malabar” being coined by colonials
• Few realize 90% of Tamils are excluded from it.

Among Estate & Eastern Tamils

• Directly feel theimpact — denied land access (purchase) in Jaffna.

The irony is : A law presumed to represent Tamil identity excludes the vast majority — yet it is often those excluded who defend it most passionately.

How many Tamils have questioned the origin of this law or who it truly serves?

Despite its limited applicability, Thesawalamai remains the only customary law specifically applied to Tamils in Sri Lanka.

Why has this Colonial relic endured?

Especially when:

• It applies to onlya minority of Tamils
• It was based onan externally imposed identity
• It potentiallyviolates equal property rights
• It fuelsdivision among Tamils themselves

Public understanding can also be influenced by broader historical narratives, political discourse, and varying levels of legal education. As with any complex legal and historical topic, simplified or even misinformed views can exist, sometimes shaped by broader societal or communal narratives.

The intertwining of Malabar” and Thesawalamai is a testament to Sri Lanka’s complex colonial inheritance. It reveals how foreign-imposed legal identities continue to influence property rights, ethnic relations, and the legal system long after independence.

If Thesawalamai was never practiced in the land where the Malabars and Vellalas came from, then it is not an imported law” — but a colonial creation.

In reality, what the Dutch and British constructed in Jaffna was a formula:

Imported Community (Malabars) + Elevated Caste (Vellalas) + Invented Law (Thesawalamai) = A powerful legal framework for colonial control.

And yet, this framework continues to survive into the 21st century — dividing Tamils, excluding Tamils, and restricting land to Tamils & all other communities too (a key constitutional violation) — in the name of tradition.

As Sri Lanka strives for equality and unity, should a colonial-era law — applicable to only 10% of Tamils — continue to divide people and distort justice in the 21st century?

Shenali D Waduge