Gajalakshmi Paramasivam

19 October 2018

Mind your language please Ceylon Today!

The war has made some natural structural changes in the Sri Lankan psyche and one is that Tamils are beneficiaries. The provider is now beyond

[…In a plural society with a mixed legal system, land policy reform leading to effective legal frameworks is not an easy task. If such reform is not carefully mapped, there is always the risk that the existing situation can be further worsened rather than improve. As examined in this paper, Sri Lanka has a long history and rich mixed cultural heritage. For Sri Lanka, it is not a simple case of moving past colonial influence on land tenure but rather finding solutions to harmonize the past with the present by exploring ways to accommodate diverse needs of its communities, customary practices, colonial legacy as well as other factors that impact property law reform. ] Ms Anne C Pickering , T C Beirne Law School, University of Queensland, Australia in her paper presented at the 2018 World Bank Conference on Land and Property

The above picture has been presented as follows by Ceylon Today as :

Empowering Jaffna women ‘Thesawalami’ law lacks teeth – WB

[The Jaffna Peninsula’s Thesawalami law, which governs the inheritance of property along matrilineal lines, and grants women the right to own property; nonetheless has certain contradictions which prevents women from optimizing the exercise of such rights, a recent World Bank (WB) report said.

Elaborating on the contradictory features of the ‘Thesawalami,’ it said that the control of property however is in the hands of a male guardian which translates to the fact that a woman cannot invest in the property which she owns, nor mortgage, lease, or sell it without the prior permission of her husband or guardian.

Gender inequities in customary land laws have increased vulnerabilities in the Northern and Eastern Provinces where women have the sole or primary responsibility for income generation through the cultivation of land or work as agricultural labour as a result of the outcome of the conflict, it said.]

The only law known to majority  folks of Northern Province is the Customary law of Thesawalamai. They may not have the capability to use sophisticated language to express the law as we do – but they know its value as ‘experience’ based wisdom that helps maintain harmony in their local community. I learnt by living as part of the Toddy Tapper community in Thunaivi-Vaddukoddai – that they themselves practice the sub-caste system – like for example upcountry and low-country classes within the Sinhalese community. Hence taken as a whole, the Tamil community is not guilty of using caste system to form hierarchy.

Land ownership is closely associated to the caste system. The above World Bank paper highlights the following in this regard:

[Thesawalamai customary law extended to two classes of persons specified in the relevant legislation granting them the first preference to buy a property available for sale at the price they propose or at market value (section 2(1) of TPO). The two classes of people entitled to the right of pre-emption are: (a) co-owners, and (b) in the event of the intestacy of the seller, his heirs (section 2(1)(a)-(b)). This provision suggests that the preferential right can be exercised by a person from any race, provided such person falls within these two classes of people. ]

 In practice, this would prevent members of ‘other’ castes from becoming neighbours. Even though we did not know about the above provisions, we made an offer to write over our share of monies left in the bank of my brother-in-law Mr Subramaniam Yoganathan of Vaddukoddai who died intestate. But the rest – majority of whom are Australians by law refused. The matter went to court which did rule that Thesawalamai applied in terms of succession.

Now some of those properties have been sold to outsiders which is in breach of the Thesawalamai Pre-emption Ordinance No 59 of 1947 (TPO). The problem is that to exercise our rights – we need to go through Jaffna Courts which have become expensive and unreliable largely due to custodians of legal power – starting with the judges – especially the younger judges who have demonstrated lack of belief in Thesawalamai law.

Section 6 of ‘JAFFNA MATRIMONIAL RIGHTS AND INHERITANCE ORDINANCE’ states:

[6. Property of a wife acquired during or before marriage to remain her separate property.

All movable or immovable property to which any woman married after the commencement of this Ordinance may be entitled at the time of her marriage, or which she may during the subsistence of the marriage acquire or become entitled to by way of gift or inheritance or by conversion of any property to which she may have been so entitled or which she may so acquire or become entitled to, shall, subject and without prejudice to the trusts of any will or settlement affecting the same, belong to the woman for her separate estate, and shall not be liable for the debts or engagements of her husband, unless incurred for or in respect of the cultivation, upkeep, repairs, management, or improvement of such property, or for or in regard to any charges, rates, or taxes imposed by law in respect thereof, and her receipts alone or the receipts of her duly authorised agent shall be a good discharge for the rents, issues, and profits arising from or in respect of such property. Such woman shall, subject and without prejudice to any such trusts as aforesaid, have as full power of disposing of and dealing with such property by any lawful act inter vivos without the consent of the husband in case of movables, or with his written consent in the case of immovables, but not otherwise, or by last will without consent, as if she were unmarried.]

Until majority daughters are married off without dowry but equal share as sons – the above condition is necessary due to lack of confidence of the woman to operate on her own. One who accepts dowry confirms lesser capability to operate outside the family. It is not different to majority women in Australia carrying the man’s name as surname. Our capabilities are genes based also and not totally on current training only.

Heritages carry genes of those to whom that place/property was ‘home’. Land that carries traditional values carries positive genes for the heirs who respect  those who generated those values. This is why we Australians attribute to Aboriginal values during public functions held on Public Lands. This has been built into the practices of Northern Tamils at family level.

Thesawalamai law empowers the women who are home-makers and therefore lack the ability to manage affairs of wider world. Education alone cannot override the trends due to such practices. Thesawalamai  law already provides for such separation between men and women. In terms of women headed households, their genes empower them. This should not be diluted by those who seem to ‘give’ rather than ‘share’. Money must follow tradition and not lead. When it leads – it naturally separates members as demonstrated by the war which was empowered by cash ‘freely’ given to both sides.

Buddhism foremost divides due to status outside the principles of Equal Opportunity. Relative to that any allocation of responsibility as per local customs in North become a small issue. We Tamils as a community ‘accept’ our wrongs as per the system of Democracy. Those who deny – and the government led by Sinhalese majority is part of this group – lose the opportunity to find the solution. Since we do not identify with a political solution being built into the Constitution – we have the right to protect our diverse heritage and this includes the way we manage land ownership.