Govt. says it has a million mouths to feed in IDP camps
Rejects allegations of inhuman refugee camps
by Zacki Jabbar
Rejecting allegations that internally displaced Northern Tamils, were suffering in refugee camps, the government said yesterday that it has to feed a million mouths each day.
Export Development and International Trade Minister G. L. Peiris, asked about Opposition allegations that 280,000 IDP’s had to put up with inhuman conditions, said that it was easy to criticize, but the government was doing a tough job under trying circumstances.
"We are willing to rectify any wrongs, but it must be remembered that a huge effort is being put in, to make the IDP’s comfortable. Nearly a million mouths have to be fed each day."
Media Minister Anura Priyadharshana Yapa, when referred to IDP requests that they be permitted to live with their relations in Sri Lanka or go abroad, said that such stories were being spread by opportunistic Opposition politicians.
"As a government, we are doing our best. Some of the IDP’s have already been resettled."
The UNP, meanwhile, has called on the government to permit around 175,000 women, children and old people, being "forcibly kept" in northern refugee camps, to live with their relations either in Sri Lanka or abroad.
Kandy District UNP MP Lakshman Kirielle said that the government by preventing the 280,000 IDP’s from escaping the "appalling conditions under which they are forced to live, was violating their basic human rights."
Under what laws are they prevented from leaving? he queried. "We can understand LTTE suspects being detained, but how can innocent women, children and old people, be denied the liberty to live comfortably with their kith and kin?"
Friday, August 21, 2009
Wednesday, August 19, 2009
Racial, religious parties to be banned
New bill to be introduced this month; more representation for women in politics
By Chandani Kirinde
Legislation to outlaw political parties bearing the identity of a religion or a race will be introduced in Parliament later this month, a senior minister said yesterday.
Minister and Government Chief Whip Dinesh Gunawardena, who chaired a parliamentary select Committee on Electrical Reforms, told the Sunday Times the new draft laws would also for the first time give powers to the Elections Commissioner to de-recognise political parties if they fail to conform to the new law.
Dinesh Gunawardena
He said registered political parties that carried the name of a religion or race would be required to reapply for recognition within one year of the new law coming into effect and would not be recognized if they did not comply with the law.
The minister said de-recognition of political parties too is a new feature. According to the Elections Commissioner, there are some 60 registered political parties at present but only about 20 are active.
The minister said that under the new legislation any party that did not field even one candidate for two consecutive parliamentary elections would not be given an extension of registration.
The new legislation would also ensure adequate representation for women in political parties. All registered parties would also need to hold an annual general meeting and its audited accounts would need to be published in Sinhala, Tamil and English newspapers. In addition an audited copy of the statement would have to be sent to the Election Commissioner within 60 days after the end of every financial year.
He said a political party would not be treated as a recognised party if its name was identical with that of another recognised party or in the opinion of the Elections Commissioner resembled such a name as to be calculated to mislead, confuse or deceive the people.
The new law would also require the Commissioner to issue, from time to time, a code of conduct to be observed during elections by political parties and candidates.
New bill to be introduced this month; more representation for women in politics
By Chandani Kirinde
Legislation to outlaw political parties bearing the identity of a religion or a race will be introduced in Parliament later this month, a senior minister said yesterday.
Minister and Government Chief Whip Dinesh Gunawardena, who chaired a parliamentary select Committee on Electrical Reforms, told the Sunday Times the new draft laws would also for the first time give powers to the Elections Commissioner to de-recognise political parties if they fail to conform to the new law.
Dinesh Gunawardena
He said registered political parties that carried the name of a religion or race would be required to reapply for recognition within one year of the new law coming into effect and would not be recognized if they did not comply with the law.
The minister said de-recognition of political parties too is a new feature. According to the Elections Commissioner, there are some 60 registered political parties at present but only about 20 are active.
The minister said that under the new legislation any party that did not field even one candidate for two consecutive parliamentary elections would not be given an extension of registration.
The new legislation would also ensure adequate representation for women in political parties. All registered parties would also need to hold an annual general meeting and its audited accounts would need to be published in Sinhala, Tamil and English newspapers. In addition an audited copy of the statement would have to be sent to the Election Commissioner within 60 days after the end of every financial year.
He said a political party would not be treated as a recognised party if its name was identical with that of another recognised party or in the opinion of the Elections Commissioner resembled such a name as to be calculated to mislead, confuse or deceive the people.
The new law would also require the Commissioner to issue, from time to time, a code of conduct to be observed during elections by political parties and candidates.
Tuesday, August 18, 2009
Anuththara Kavindi Jayawardane
My Best Friend’s Daughter
Anuththara Kavindi Jayawardane
Dear All,
I am the best friend of Mrs. Sandhya Kumari Jayawardene, the mother of Anuththara Kavindi Jayawardene, the 14-year old girl who is said to have hung herself with her school tie on 22nd July 2009 . Kavindi's mother and I are best friends since August 2000 and Kavindi was a dear friend of my daughter, who was two years younger to her. I have known Kavindi quite closely since she was in Montessori with my daughter.
Her father is a professional/graduate Accountant and her mother too was in the accountancy field before she gave up her job upon marriage. Her mother is from Kegalle, an innocent, down-to-earth, virtuous woman who was a devout Buddhist. Kavindi was an only child, extraordinarily beautiful and was very shy. She was a studious girl whose report cards received from school always described her as a "Siyalu Dena Samaga Sahayogayen Kriya Karana, Vineetha, Keekaru, Sisuwiyeki". Anyone can take a look at her school books and report cards and see if she seems a disturbed or disobedient girl.
Kavindi’s mother was the kind of woman who even went to the extent of having a Bodhi Poojawa for my daughter who was a non-Buddhist, when she was sitting for her 5th Grade Scholarship exam, thinking of someone else’s child as her own.
It is so saddening to hear that Kavindi's name has been tarnished by the school making her look like a girl who was into porn, boyfriends and similar stuff whereas in actual sense she was a girl who did not even collect pictures of movie stars, cricketers or any such thing that a teenager of today would do but was always getting good grades at school and excelling in studies.
In fact, Kavindi was the pillar of strength to her mother during their family ordeal of Kavindi’s father going through a kidney transplant about two years ago. Athula, her father was not the “STRICT” father as depicted in the media. He in fact would return home and keep Kavindi on his lap and ask her what happened at school or joke with her about things on TV. Even after Kavindi attained age and showed all signs of a beautiful young lady, Athula petted her like a little girl.
She was very close to her mother, and till her death Kavindi's world and after school activities involved playing with her little cousins next door and helping her mother with housework. She even knew how to cook, something only a handful of 14-year-olds today would know.
She encouraged her mother to do home-gardening and have plenty of vegetables grown in their 15 perch house and land, and loved seeing the produce being consumed. She was never into Facebook, computer games, hip electronic gadgets or any such thing. I was always in and out of their house as Sandhya was one of the few persons (apart from my own Mother) that I would trust to leave my daughter with whenever I had to leave my daughter with someone.
During the past 8 years, my daughter spent most of her holidays at their home where I would drop her off in the mornings and pick her up at evening and stay on for at least 1-2 hours chatting with my best friend. Whenever I called my daughter in between, Kavindi would talk to me too, and relate what they had been playing during the day and tell of their plans for evening play and I would often find Sandhya feeding both my daughter and hers, if I happen to call during lunch time. Kavindi played hide and seek, dolls, imaginary house, Lego and similar games with her mother, my daughter and her little cousins from next door and was innocent and unspoiled and a far cry from what is being told about her now.
It is sad to learn from her classmates that a Prefect from her school actually dragged her by her tie upon confronting her for having a mobile phone in her school bag (which did not even belong to her) and taken her to the Section Head's office and also made her kneel in public and humiliated her by showing her to others. This fact would now be denied by school authorities for obvious reasons but for a child who has never been reprimanded in her entire life for indiscipline just cannot bear such humiliation, harassment and public embarrassment.
The school authorities should also appoint Counsellors in schools who are qualified enough to handle these kind of situations instead of having Teachers and mere school girls (Prefect Bullies) handling situations involving human emotions.
Even when her body was discovered hanging in the toilet, the teachers or authorities of the school had not even loosened her tie around the neck or given appropriate first aid to revive her.
The only thing this school can do now is to tarnish her good name and make her look like a "bad girl" who committed suicide, thereby deviating the attention of the public to the fact that the girl was suspected, embarrassed in public, emotionally abused and mishandled by Prefects and Teachers who were not capable of understanding emotions of a 14-year old and never thought of repercussions of misjudgement, harshness, cruelty and public humiliation. She had in fact begged that it is okay to tell about the incident to her mother but never to tell her father because he was a kidney patient whom Kavindi always feared would die if he faces sadness.
Kavindi was the type of girl who was so shy that she would even nudge me and her mother in embarrassment if we ever spoke out in public in protest for small injustices such as being over-charged at stores or such similar small incidents and tell “aney randu karanna epa ammey, nikam innako ammey, etc…” and blush in embarrassment. She is the type of girl who encouraged and loved the fact that her mother was among the very few mothers at her school who only wore a simple ‘Osariya’ whenever she had to visit Kavindi’s school. She never even allowed her mother’s Saree blouses to have a deep-cut neckline and would protest against any body part of her mother being shown in public. It is this virtuous charactered Kavindi who today is being portrayed as the girl who would watch porn or pose nude for her boyfriend and allow to be photographed or filmed.
Since the Police have found out that Kavindi is not the owner of the mobile in question, there were no porn in the mobile, there were no nude photos or sms directed to Kavindi, then why isn’t the school issuing a statement about the true owners of the mobile phone or the actual contents of the mobile?
Why isn't the school ascertaining the fact that the mobile did not belong to Kavindi but to the other three students of the same school/class who had pooled and bought the mobile then slipped it into innocent and shy Kavindi's school bag when the Prefects came along, checking for mobiles in their classroom?
Why isn't the school talking about the two girls who subsequent to Kavindi's hanging body being found tried to commit suicide, one by stabbing herself with a bottle and the other by consuming some toilet detergent, when they realized what they had done to their classmate Kavindi and their guilty consciousness took the better of them?
Today, a majority of Sri Lankans know Kavindi as the “girl who watched porn on her mobile and committed suicide in shame”, or "the girl who had her nude pictures in her mobile", or "the girl who was mentally ill or depressed", or "the girl whose parents were too strict" and such ghastly impressions.
At present, my best friend is a woman who hears her only child’s voice echoing around the house, sees her face every where, a broken woman with no hope for the future and a woman who wishes she died with Kavindi. She is a well-read but simple housewife whose world was woven around her only child. She is still that devout Buddhist who forgives the media for tarnishing her precious daughter’s name, forgives the people who did not provide timely first aid to her daughter when they found her hanging, forgives the prefects who manhandled her daughter, forgives the three girls who slipped the phone in Kavindi's school bag and pushed her to death in shame, but the fact remains, Sandhya's soul died along with her only child.
My only appeal to you is, despite misleading information by the media and complete silence maintained by the relevant school, to think logically about Kavindi's name unduly tarnished along with her parents reputation.
Please also pass this on to everyone you know.
Thank you,
Farah
Anuththara Kavindi Jayawardane
Dear All,
I am the best friend of Mrs. Sandhya Kumari Jayawardene, the mother of Anuththara Kavindi Jayawardene, the 14-year old girl who is said to have hung herself with her school tie on 22nd July 2009 . Kavindi's mother and I are best friends since August 2000 and Kavindi was a dear friend of my daughter, who was two years younger to her. I have known Kavindi quite closely since she was in Montessori with my daughter.
Her father is a professional/graduate Accountant and her mother too was in the accountancy field before she gave up her job upon marriage. Her mother is from Kegalle, an innocent, down-to-earth, virtuous woman who was a devout Buddhist. Kavindi was an only child, extraordinarily beautiful and was very shy. She was a studious girl whose report cards received from school always described her as a "Siyalu Dena Samaga Sahayogayen Kriya Karana, Vineetha, Keekaru, Sisuwiyeki". Anyone can take a look at her school books and report cards and see if she seems a disturbed or disobedient girl.
Kavindi’s mother was the kind of woman who even went to the extent of having a Bodhi Poojawa for my daughter who was a non-Buddhist, when she was sitting for her 5th Grade Scholarship exam, thinking of someone else’s child as her own.
It is so saddening to hear that Kavindi's name has been tarnished by the school making her look like a girl who was into porn, boyfriends and similar stuff whereas in actual sense she was a girl who did not even collect pictures of movie stars, cricketers or any such thing that a teenager of today would do but was always getting good grades at school and excelling in studies.
In fact, Kavindi was the pillar of strength to her mother during their family ordeal of Kavindi’s father going through a kidney transplant about two years ago. Athula, her father was not the “STRICT” father as depicted in the media. He in fact would return home and keep Kavindi on his lap and ask her what happened at school or joke with her about things on TV. Even after Kavindi attained age and showed all signs of a beautiful young lady, Athula petted her like a little girl.
She was very close to her mother, and till her death Kavindi's world and after school activities involved playing with her little cousins next door and helping her mother with housework. She even knew how to cook, something only a handful of 14-year-olds today would know.
She encouraged her mother to do home-gardening and have plenty of vegetables grown in their 15 perch house and land, and loved seeing the produce being consumed. She was never into Facebook, computer games, hip electronic gadgets or any such thing. I was always in and out of their house as Sandhya was one of the few persons (apart from my own Mother) that I would trust to leave my daughter with whenever I had to leave my daughter with someone.
During the past 8 years, my daughter spent most of her holidays at their home where I would drop her off in the mornings and pick her up at evening and stay on for at least 1-2 hours chatting with my best friend. Whenever I called my daughter in between, Kavindi would talk to me too, and relate what they had been playing during the day and tell of their plans for evening play and I would often find Sandhya feeding both my daughter and hers, if I happen to call during lunch time. Kavindi played hide and seek, dolls, imaginary house, Lego and similar games with her mother, my daughter and her little cousins from next door and was innocent and unspoiled and a far cry from what is being told about her now.
It is sad to learn from her classmates that a Prefect from her school actually dragged her by her tie upon confronting her for having a mobile phone in her school bag (which did not even belong to her) and taken her to the Section Head's office and also made her kneel in public and humiliated her by showing her to others. This fact would now be denied by school authorities for obvious reasons but for a child who has never been reprimanded in her entire life for indiscipline just cannot bear such humiliation, harassment and public embarrassment.
The school authorities should also appoint Counsellors in schools who are qualified enough to handle these kind of situations instead of having Teachers and mere school girls (Prefect Bullies) handling situations involving human emotions.
Even when her body was discovered hanging in the toilet, the teachers or authorities of the school had not even loosened her tie around the neck or given appropriate first aid to revive her.
The only thing this school can do now is to tarnish her good name and make her look like a "bad girl" who committed suicide, thereby deviating the attention of the public to the fact that the girl was suspected, embarrassed in public, emotionally abused and mishandled by Prefects and Teachers who were not capable of understanding emotions of a 14-year old and never thought of repercussions of misjudgement, harshness, cruelty and public humiliation. She had in fact begged that it is okay to tell about the incident to her mother but never to tell her father because he was a kidney patient whom Kavindi always feared would die if he faces sadness.
Kavindi was the type of girl who was so shy that she would even nudge me and her mother in embarrassment if we ever spoke out in public in protest for small injustices such as being over-charged at stores or such similar small incidents and tell “aney randu karanna epa ammey, nikam innako ammey, etc…” and blush in embarrassment. She is the type of girl who encouraged and loved the fact that her mother was among the very few mothers at her school who only wore a simple ‘Osariya’ whenever she had to visit Kavindi’s school. She never even allowed her mother’s Saree blouses to have a deep-cut neckline and would protest against any body part of her mother being shown in public. It is this virtuous charactered Kavindi who today is being portrayed as the girl who would watch porn or pose nude for her boyfriend and allow to be photographed or filmed.
Since the Police have found out that Kavindi is not the owner of the mobile in question, there were no porn in the mobile, there were no nude photos or sms directed to Kavindi, then why isn’t the school issuing a statement about the true owners of the mobile phone or the actual contents of the mobile?
Why isn't the school ascertaining the fact that the mobile did not belong to Kavindi but to the other three students of the same school/class who had pooled and bought the mobile then slipped it into innocent and shy Kavindi's school bag when the Prefects came along, checking for mobiles in their classroom?
Why isn't the school talking about the two girls who subsequent to Kavindi's hanging body being found tried to commit suicide, one by stabbing herself with a bottle and the other by consuming some toilet detergent, when they realized what they had done to their classmate Kavindi and their guilty consciousness took the better of them?
Today, a majority of Sri Lankans know Kavindi as the “girl who watched porn on her mobile and committed suicide in shame”, or "the girl who had her nude pictures in her mobile", or "the girl who was mentally ill or depressed", or "the girl whose parents were too strict" and such ghastly impressions.
At present, my best friend is a woman who hears her only child’s voice echoing around the house, sees her face every where, a broken woman with no hope for the future and a woman who wishes she died with Kavindi. She is a well-read but simple housewife whose world was woven around her only child. She is still that devout Buddhist who forgives the media for tarnishing her precious daughter’s name, forgives the people who did not provide timely first aid to her daughter when they found her hanging, forgives the prefects who manhandled her daughter, forgives the three girls who slipped the phone in Kavindi's school bag and pushed her to death in shame, but the fact remains, Sandhya's soul died along with her only child.
My only appeal to you is, despite misleading information by the media and complete silence maintained by the relevant school, to think logically about Kavindi's name unduly tarnished along with her parents reputation.
Please also pass this on to everyone you know.
Thank you,
Farah
Understanding Thesawalamai
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.
________________________________________
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.
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