The myths and misconceptions of the Thesawalamai law
Thesawalamai is based on usages and customs. Custom begins where usage ends. Custom derives the force of intendment of law. A very long period of time, generality, uniformity and consistency are the determining factors for the maturity of custom as a source of law.

The word 'Thesam' means 'state' or 'nation'; 'walamai' is 'custom'. Thus, the term 'Thesawalamai' means 'customs of the state or nation'. These customs were originated from the usages and customs of the Malabar Coast of India. 'Thesawalamai' is Dravidian in nature, unconnected with the Hindu law of India. It derives from Marumakattayan Law, which is the main source of Thesawalamai. With the passage of time it has been blended by the influence of Roman Dutch Law and English Law. It is the combination of patriarchal and matriarchal systems of societies existing side by side.

'Thesawalamai' was partly written in ola leaves and partly unwritten. The principles of Thesawalamai were handed down in the form of oral discourses from generation to generation. The Mudaliars who were learned in these customs were the then authorities to explain and interpret the intricacies of the principles of Thesawalamai.

During the Portuguese period, no attention was paid to the laws of the natives. The Portuguese did not codify the customs of Thesawalamai. The Dutch, anxious that 'the natives should be governed according to the customs of the country if they were clear and reasonable, codified the Thesa-walamai law.

In 1704, the Dutch Governor of Ceylon, Simons, ordered the Disawa of Jaffna, Claas Isaakasz, to compile the customs of the Tamil inhabitants of Jaffna. An extensive study of the usages and customs of the Tamil inhabitants of Jaffna was undertaken before such compilation. The code was done in the Dutch language and submitted to the Commander Van der Duyn in 1706.

The Commander had the report translated into Tamil and delivered the translation to twelve "sensible" Mudaliars to revise it. They confirmed that the report conformed to the prevailing customs.

In 1708, the codification of the customary laws of the "Malabar inhabitants of the province of Jaffna" came into force.

The word 'Malabar' is held to be synonymous with the word 'Tamil'. Claas Isaacsz in his foreword to the Thesawalamai Code refers to Malabar or Tamil inhabitants.

In 1806, Ceylon was ceded to the British Crown. By Regulation No.18 of 1806 the British declared that the Code of Thesawalamai, as collected by the Order of Governor Simons in 1706 shall be in full force and that "all questions between 'the Malabar inhabitants of the Province of Jaffna, or in which a Malabar inhabitant is a Defendant', shall be decided according to this Code of customs".

In 1814, Sir Alexander Johnstone translated this Code into English and the English translation derives force in law as at today.

It is a personal law applicable to 'Tamils with Ceylon domicile and a Jaffna inhabitancy'. It is not applicable by 'reason of descent and religion to the whole Tamil population of Ceylon but an exceptional custom in force in the province of Jaffna, now the Northern Province and in force there, primarily, and mainly at any rate, only among Tamils who can be said to be inhabitants of that province'.

It is also a regional or municipal law in that it applies to all lands situated in the Northern Province irrespective of whether the land is owned by a Tamil, Sinhalese, Muslim, Burgher or by persons of any other race.

The Matrimonial Rights and Inheritance Ordinance (Jaffna) regulates the law with regard to property and Law of inheritance.

Thesawalamai Pre-emption Ordinance No.59 of 1947 regulates the law in relation to land affected by the law of Thesawalamai. This Ordinance came into force on July 1, 1948, repealing so much of the Thesawalamai and of the Ordinance No.4 of 1895.

The term 'Pre-emption' means that certain classes of persons enjoy a preferential right to purchase immovable property over others. This right of pre-emption under the present law is restricted to two classes of persons, namely (1) Co-owners and (2) Heirs in the event of the intestacy. Accordingly, when immovable property is co-owned, one co-owner cannot sell the land to an outsider without first offering it to the other co-owner or heirs whether he is a Sinhalese or otherwise.

The right of pre-emption shall only be exercised in respect of an undivided share or interest of an immovable property. It shall not be exercised in property held in sole ownership. If the land to be sold is a divided and defined allotment of land, no right of pre-emption shall exist. In that case, the vendor shall have the absolute right to sell the same to any person whom he prefers, whether he is a Sinhalese or not. No provision of the Ordinance prevents him from selling the land to a Sinhalese. No reasonable man would refuse to sell his property to the highest offeror of consideration.

A pre-emptor has to be a co-owner or an heir of an undivided allotment of land. He can be a Sinhalese, a Tamil, a Muslim or any person of any other race. If an owner of an undivided land has conveyed it to an outsider, a pre-emptor has the right to institute an action to set aside the sale of an undivided share of the land on any of the grounds set out in the Ordinance.

No action is maintainable for pre-emption if the purchaser was one of the persons entitled to pre-empt or if more than one year has elapsed from the date of registration of the purchaser's deed of transfer. It does not apply to property in respect of a share of a land which has been possessed and dealt with in divided lots by amicable partition among the shareholders, with each other's knowledge and consent'. It also does not extend to an exchange of land.

The right of pre-emption gets extinguished by (1) transfer of property to pre-emptor, (2) waiver (3) release (4) forfeiture (5) frustration of the contract of sale (6) prescription - the right of pre-emption will not be available after three years from the date of the cause of action, (7) operation of law (8) merger and (9) any other restrictions by judge made law.

There is a general misunderstanding that Law of Thesawalamai or the Thesawalamai Pre-emption Ordinance gives exclusive right of purchase of immovable property in the Northern Province to Tamils of that province only and that the Sinhalese cannot have the right to buy any immovable property. It is a myth rather than a legal sanction: it is a misperception of the law of Thesawalamai.

An examination of the Law of Thesawalamai and of the Thesawalamai Pre-emption Ordinance would demonstrate very clearly that it is an erroneous thinking due to the lack of understanding, appreciation and tolerance of the applicability of these laws.

The Law of Pre-emption is expressly governed by the Thesawalamai Pre-emption Ordinance and not by Thesawalamai Regulation or the Customs of the Malabar Inhabitants of the Province of Jaffna, as collected by Order of Governor Simons in 1706. However, both these laws do not prohibit a person, whether, Sinhalese, Tamil or Muslim or a member of any other race from purchasing any allotment of land situated in the Northern Province.

The right to own or dispose any immovable property in the Northern Province is not restricted to Tamils alone as perceived by some of the politicians in the South. Neither the Thesawalamai nor the Thesawalamai Pre-emption Ordinance has any such provision.

A careful reading of the provisions of the Thesawalamai Pre-emption Ordinance shows that the co-owners or the would be heirs of the intending vendor of an undivided allotment of land, whether a Sinhalese or otherwise will have preferential right to purchase that share. If the co-owner is a Sinhalese, then, he will have the preferential right to purchase that share over others.

The widespread thinking that Sinhalese cannot buy land in Jaffna has no foundation at all both in fact and law. However, the legendary belief that the Tamils are invaders, infringing their exclusive right to the soil of Sri Lanka is deeply buried in the mind of some sections of the Sinhalese population. This wrong conception has created imaginary scenarios that Sinhalese are excluded from ownership of part of the land of Sri Lanka. Even well-educated Sinhalese will entertain fanciful emotional feelings that Sinhalese cannot buy land in Jaffna though it is common knowledge that there are thousands of Sinhalese and Muslims who are owners of land in Jaffna. Thus, the aforesaid apprehension becomes irrational and lacks any valid basis; yet, such fear has deeply pervaded some of the Sinhalese. To make things worse, political miscreants make this cry from time to time and disturb the harmony and tranquility of Sri Lanka.

It would be apposite to mention that neither the Dutch nor the English would have tolerated such anti-national law to remain in force. Great scholars like Dr. C.G. Weeramantry, Dr. L.J.M. Cooray, Professor S.W.E.Goonesekera and others had contributed several articles on the law of Thesawalamai. Had there been any such obnoxious provisions they would have not hesitated to point it out: our Parliament would have long ago amended it.

So in the period of peace, let us clear our misunderstanding and distrust and refrain from acting on fallacies and emotional feelings. Let us stand united on a firm appreciation and application of one's rights and obligations without jeopardizing or obscuring the rights of any person: let us by our unity bring glory and fame to the once 'the pearl of the Indian Ocean' - Sri Lanka.

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