By Lionel Bopage –

Dr Lionel Bopage

[Part 7 of this series was published on Monday, the 4^th of December 2017]

Correction: The previous parts of this lengthy response was published under the heading ‘In Light of Dr. Nalaka Godahewa’s Speech at the UNHRC in Geneva’. The author regrets this unwitting error ascribing an undeserving distinction to the speaker.

6. Dr Godahewa says: Sri Lanka gives recognition to the minorities in the national flag itself, not many countries in the world give such recognition to the minorities; all public documents including currency notes and those relating to marriage, death and immigration are available in both Sinhala and Tamil languages; all communities receive free education and healthcare with no discrimination whatsoever and they are able to participate in sports and represent the country at national level.

In addition to other state symbols and anthems, many countries use flags featuring animals of all sorts, but all of them symbolises positive aspirations. For example, the National Flag of Zambia is different from the rest of the world in that it uses a green back with “an orange-coloured African fish eagle in flight over a rectangular block of three vertical stripes in red, black, and orange (left to right). Green stands for the nation’s lush flora, red for the nation’s struggle for freedom, black for the Zambian people, and orange for the land’s natural resources and mineral wealth. ”^[1] The African Fish Eagle flying above the coloured stripes implies the people’s ability to rise above the nation’s problems. On the contrary, it is sad that the National Flag of Sri Lanka has become a symbol of ethnic divide for the exclusion of the other rather than exemplifying unity and inclusivity needed for building a better, harmonious and fairer country. Compartmentalising (or pigeonholing) the ‘minorities’ in the country’s national flag as a proportion to the majority Sinhala Buddhists is quite detrimental to the spirit of One Nation. Most successful democracies of diverse ethnicities opt for unifying symbols in their national flags.

To the credit of successive governments, limited progress has been achieved in making public documents available in all three languages of Sri Lanka. Despite this, there is no assurance that a public servant will either file or respond to an application in the same language the applicant is conversant with. In such instances the applicant must find at his own expense a sworn translator for a legally valid translation. In many offices in the South, there are no officers who can understand or read or write Tamil. And volumes of documents both in the public and private sector are not available in all three languages.

How much blood had we spilled to avoid the three languages being used in public documentation? How many Police or security force personnel are willing to accept a complaint that is made in Tamil? For people communicating in Tamil, why do public servants respond to only in Sinhala? Why is there no responsible mechanism to ensure that the provisions of the Constitution are more fully enforced? The more we dig, the more discriminatory practices come to light. This list is endless.

As to the free education, healthcare and participation in sports, etc., Dr Godahewa must perhaps be thinking of a wonderland. Not all teachers and doctors can be blamed for the notable deficiency in the fields of education and health. Due to lack of appropriate policy formulation and implementation, and prevalent corruption, mismanagement and inefficiency we face in Sri Lanka today, the standard of education at primary, secondary and tertiary levels continue to deteriorate. In many government hospitals, doctors briefly attend to patients and then soon leave to attend to their more lucrative private practices. No proper treatment, medication, or timely surgery for those disadvantaged people seeking help in the public hospitals. Unfortunately, this is the reality. The waiting times for treatment are much worse in the war affected north and east. Needless to say the rate of Tamil representation in sports at national and international level have been statistically low for over many decades.

The symbolism a national flag represents does not have any useful meaning unless actions are taken to make that symbolism a material reality at the grassroots level. A country may have the best constitution as its basic law, but it is not worth the paper it is written on without genuinely implementing its provisions for the betterment of all its peoples. Sadly, there are those in Dr Godahewas’s camp who do not wish even the National Anthem sung in Tamil! How could it be construed as constructive rather than discriminatory?

7. Dr Godahewa adds: Thesavalamai Law does not allow anybody else other than a Tamil to buy land in Jaffna, but Tamils have no restriction whatsoever to buy properties elsewhere in the country.

In the Northern Province, a code of laws called Thesavalamai Law (Customs of the Land) is in operation and deals with property, inheritance and marriage. This traditional law is both territorial and personal in character. This law is applicable to all lands in the Northern Province irrespective of the nationality and religion of their owners. As a customary territorial law it applies to Tamils in the Mannar area as well, but not to Tamils living in Trincomalee or Batticaloa, or Malaiyaha Tamils living in the plantations.

It recognises three property rights: dowry property (Seedhanam) that women receive when they are married; property inherited by a man from his parents (Muthisam); and property acquired by the husband / married couples after marriage, which will be equally owned by the husband and wife (Thediya theddam)[2]. This code existed prior to colonial days. During the Dutch colonial rule in 1706, this was codified. Under Tesawala Regulation No 18 of 1806, the British made it legally valid. As in the case of other laws, this law has been enriched by the case law and precedents, and will have contradictions and conflicts that need to be resolved via clauses of preclusions, exclusions, ultra vires and effective date etc. However, this law is said to be not to have evolved with time or taken into account the social changes.

Additional to the Thesavalamai Law in the Northern Province, Kandyan Law, Muslim Law and Mukkuwa Law are also in operation in Sri Lanka within restricted parameters. The Roman Dutch Law applies outside these restricted parameters. In Batticaloa the dominant Mukkavar caste had similar codes to preserve their dominant economic position in society, its main difference being that the distribution of property followed the matriarchal line rather than the patriarchal one. This way the elites in the north and east put their energies into education to find good civil service jobs, so they could preserve their family and religious traditions.

Maintaining very close family relationships among Tamils by this rigid customary law, was a basic principle of the Tamil Joint Family system. These customs and practices related to land appear to have come into being due to specific socio, economic and cultural conditions that existed in the Jaffna Peninsula, such as scarcity of resources, limited availability of arable land and water shortages for agriculture. Sub-division of arable land to be sold to an outsider will affect agricultural productivity due to lack of economies of scale. It will also lead to problems like sharing a common well which might be on the property, which is also accessed by adjoining landholders.

The joint ownership of property appears to be maintained to prevent that property being transacted without the knowledge of the other owner/s. Under this law, upon marriage guardianship of a woman passes from her father to her husband. Thus, the husband becomes the sole and irrevocable attorney of the wife. Hence, she cannot transact even her own personal investments or sign away ownership of land without her husband’s written consent. It is also the case the other way around. Even husband cannot sell a land in his own name, bought or inherited after marriage, without the written consent of his wife! It is designed to protect the marriage relationship for all times!! Similarly, any inheritance from parents cannot be transacted ignoring their interests and well-being in their old age.

According to Dr H W Tambiah, the notion that Sinhalese cannot buy land in the Northern Province consequent to the law of preemption under the Thesavalamai Law is a grave misconception[3]. Tambiah argues that ‘what is contemplated by the law of preemption is that a co-owner or prospective interstate heir should have preferential right to purchase the land in question; if persons who are able to preempt refuse to purchase the land, then, it can be purchased by anyone else. Preemption does not result in a prohibition on the alienation of land except to certain specified persons. … … It should also be noted that any person could buy land in the Northern Province if he or she was prepared to pay a higher price than the persons who are entitled to preempt’.

Additionally, this issue is further complicated by the concerns the Tamil people have that properties being bought in the north by the Sinhala people would assist state-sponsored colonisation schemes aimed at changing population patterns so as to reduce Tamil representation in the Parliament in the long run.

To be continued …..

[1] The Flag of Zambia, described at: http://www.africa.upenn.edu/Country_Specific/Zamflag.html

[2] Pathmanathan C 2002, Ilankai Thamizharin Thesavazhamaiyum Samuga Vazhamaikalum, Kumaran Book House, Colombo, Cited in 2002 Book Review: Ganeselingan 2002, Laws and Customs, in The Hindu available at: http://www.thehindu.com/thehindu/br/2002/11/26/stories/2002112600070300.htm; also see specific reference to this property form in: The Mukkuwa Law 2016; published by Forgotten Books at Pages 5-6, available at: https://www.forgottenbooks.com/download_pdf/The_Mukkuva_Law_1000326926.pdf

[3] Tambiah H W 2000, The Laws and Customs of the Tamils of Jaffna (Revised Edition), vi and http://noolaham.net/project/11/1082/1082.pdf