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Sri Lanka schemes ‘legal reform’ to negate identity and grab land

[TamilNet, Wednesday, 11 November 2009 09:20 No Comment]

News reports from Colombo indicate Sri Lanka government is planning to revise the Theasa Vazhamai law of Tamils, which is a constituent legal code, ever since the formulation of the island’s current legal system by the Dutch. The urgency of the Sri Lanka state at this juncture is not social reformation but grabbing the lands of Tamils without legal hurdles, besides removing last vestiges of Tamil sovereignty in the state apparatus, Tamil legal circles said.

The very word ‘Theasa Vazhamai’ means the conventions of the nation or country.

This is a civil legal code applicable to the people of the Jaffna Peninsula and was codified by the Dutch in early 18th century, by compiling the traditional laws of the times of Tamil sovereignty before the advent of colonialism.

The legal code was a result of a consensus between the Dutch administration and the chieftains of Jaffna. Earlier, at the fall of the kingdom of Jaffna, the chieftains had a convention on such matters with the Portuguese. The details of this convention, mentioned by historians, are said to be available in the archives of Goa, but are yet to be translated.

The nomenclature Theasa Vazhamai implies that the Tamils had a Theasam (country) in the island and the incorporation of it as an identifiable legal code in the Roman-Dutch legal basis of the island by the Dutch indicates that separate sovereignty of Tamils in the island was acknowledged in matters of civil law. The territories of the kingdom of Jaffna were a separate unit called Jaffna Patnam under the colonial administrations of the Portuguese and the Dutch.

A Tamil coastal community of the eastern and western parts of the island also had a similar code compiled by the Dutch, but it became obsolete and removed in British times. When the British conquered Kandy in 1815, as a consequence of a convention between the British and the chieftains, the Kandyan Sinhalese received a similar legal code, which is still recognised as Kandyan Law.

The most conspicuous part of Theasa Vazhamai is its property and inheritance laws, which strike a balance between patriarchy and matriarchy, in differentiating Muthusam, property that comes in father’s line from Seethanam, property that comes in mother’s line.

Unlike the Tamil Nadu custom of Vara-thadcha’nai, which in etymology and in practice means donation to the bridegroom, the Seethanam of Jaffna means woman’s property and in practice also go in female line. Husbands live in wives houses and sons will not get the property when there are daughters.

British colonialism lenient to patriarchy, as seen with the case of the abolition of Marumakka’l Thaayam (a matrilineal practice among the Naayar community) in the princely state of Trivancore, brought in changes twice in Theasa Vazhamai too, according to which the husband has to countersign when a woman transacts her property.

The British version of Theasa Vazhamai, before changes, is available in the form of palm leaf manuscripts in London. Prof. S. Pathmanathan has reproduced some of them a couple of years ago in his book in Tamil on Theasa Vazhamai.

According to legal circles, what the Sri Lankan state eyeing now in the guise of social reform is erasing an important element in the property laws, called Earvai that prevents selling a land to others, when neighbours are prepared to pay the same money.

The law was a reason for strong ‘village identities’ among Tamils but at the same time also contributed to caste segregation of settlements.

Migration to foreign countries, displacement and the drastic conditions faced by Tamils are in many ways changing the social picture today in which diaspora remittance determines land transactions among castes, but yet as a social consensus, land is retained within Tamils and has not gone to non-Tamils.

The idea of the Sri Lankan state is to break the identity of Tamils with their land in their heartland on one hand, and on the other, to pave way for the purchase of Tamil lands by the new economic forces dominated by Sinhalese, said an academic in Jaffna, adding that once practical applicability is invalidated, Theasa Vazhamai, the symbol of a separate identity and the last vestige of legal sovereignty of Tamils in the island will become obsolete.

Some LTTE circles also, when there was a de facto state, thought of revising Theasa Vazhamai, but for social reasons. This is different from what the Sri Lanka government aims now without exclusive consent of the people concerned. This is a matter for Tamils to decide under their own sovereignty, the academic said.

The Sri Lankan state could have easily achieved multi-ethnic land ownership in any part of the island had it conceded the rights of Tamil nation in the island and had eliminated fear of genocide. But the state now tries to achieve it as a part of a systematic structural genocide after militarily crushing the balance of Tamils and some greedy powers are assisting to this process, the academic further said.

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