The topic of land in the Northern province evokes controversy. The buzz word being land occupied by security forces. This piece focuses on methods of access to land under the 13th Amendment to the Constitution.
Essentially land can be allocated in the province on account of poverty, grants from previous Land Development Ordinance (LDO) permits, acquisitions and leases. The process is undertaken by Divisional Secretaries, District Land use committees for approval, the Provincial Land Commissioner and the Governor.
As at 2021, records show that 71,000 LDO permits have been previously issued. Through a process of due diligence and subject to legal stipulations they can be converted to grants of which 21,000 grants have been prepared.
It is said the province has close on 400,000 families. Technically a shade less than 25% qualify for grants.
The second most important category are those classified as poor. In 2023 out of 411,425 families a staggering 175,685 are classified as below the poverty line comprising, 307,924 members. They qualify for land under the 13th Amendment.
The process of applying and receiving title is long and arduous but achievable. However, this is what the law allows and is largely untapped, not advocated nor realized. Perhaps there is an elephant in the room.
When in office, I found scores of applications coming for approvals. I realized the value of this opportunity then. What is astounding is, notwithstanding raging controversies on private lands acquired for security detachments, a low hanging fruit of why something as vital, critical for the lives of the poor, those who are entitled by virtue of previous LDO are not canvassed or spoken of loudly.
The reasons elude me. I have attempted to search for published material on the nature of ownership of land historically in the province. One does come across Thesawalamai. It is worth for the record to explore the nuances of Thesawalamai.
Thesawalamai Law
I quote from a speech on Thesawalamai and its application by K. Kanag-Isvaran, President’s Counsel at The National Trust – Sri Lanka Monthly Lecture 56 at the HNB Auditorium on 31st October 2013. I have used some aspects of his speech.
Land and the Malabar Inhabitants of the Province of Jaffnapatam
“Among the customary laws of the Tamils of Sri Lanka, namely the Tamils of Jaffna, Trincomalee, Batticaloa, Puttalam, Calpentyn, the Vanniars and the Mukkuvas, the Thesawalamai takes the pride of place, as being the most comprehensive, and as having survived to date as a living system of customary law. The people who were governed by these ancient institutions and customs have been called the Malabar Inhabitants of the Province of Jaffnapatam.
The question whether the term Malabar means (not includes) Tamil inhabitants of the Province of Jaffna, in the context of Thesawalamai, has been settled by a long line of judicial decisions of the Supreme Court, 17 in the affirmative (Chetty v Chetty (1935) 37 NLR 253 – Thesawalamai governs Vanniyas; Tharmalingam Chetty v Arunasalam Chetty (1944) 45 NLR 414; Tillainathan v Ramaswamy Chettiar 4 NLR 328 at 333; Marshall v Savari (1878) 1 S.C.C. 9 – Thesawalamai governs Tamils of Mannar; Savundaranayagam v Savundaranayagam (1917) 20 NLR 278 – re Chetty community in appeal from the judgment of Dr. Paul Pieris, District Judge).
In British times, the map of Ceylon of the Surveyor General, of December 1822, establishes that the Province of Jaffna, included the Districts of Mannar and Mullaitivu and that the extreme Southern limit was the line separating Chettikulam from Nuwarakalawiya. (Thesawalamai Commission 1919. See also, Wellapulle v Sitambalam Ram. Rep 1872 – 1876 at 114).
In the year 1835 when Ceylon was divided into nine provinces, the present limits of the Northern Province was determined. Thesavalamai, therefore, applies to the Malabar Inhabitants of the Province of Jaffna.
The question of who is a Malabar, arose for determination and was specifically considered by the Supreme Court, in a case where the applicant’s father had come from Ramnad, in South India, long after 1806 and had settled down in Jaffna. It was contended that the Thesavalamai did not apply to him because he was not from the Malabar coast. The Court, however, rejected the argument that Thesavalamai applied to only those who came from the Malabar coast and not to other Tamils and held that it applied to all Tamils so long as they had an inhabitancy in the Northern Province (Tharmalingam Chetty v Arunasalam Chetty (1944) 45 NLR 414.).
One has to be a Tamil for Thesavalamai to apply. Recall here that Thompson, in his Institutes, (1806) called it ‘Tamil Country Law’. However, non-Tamils can come under its tutelage. A non-Tamil woman marrying a Tamil inhabitant of the Province of Jaffna, will be governed by Thesavalamai, during the period of coverture, and will be entitled to all the benefits of a Thesavalamai wife. And liabilities of course.
Thesawalamai, therefore, as we have seen, is a personal law applicable to all persons who answer the description of ‘Malabar inhabitants of the Province of Jaffna’. Even an Indian Tamil, though not a citizen of Sri Lanka, can acquire the status and be governed by Thesavalamai.
Thesawalamai has also a local application as opposed to its personal application. Thesavalamai as a local law, applies to all lands situated in the Northern Province of Sri Lanka, whether owned by the Malabar inhabitants of the province, or Sinhalese or Burghers or Chinese or Indians.
Thesavalamai, as we have seen, is a personal law, as well as the local law applicable to all lands situated in the Northern Province of Sri Lanka, whether owned by the Tamil inhabitants of the province, or any other. It is matrilineal, albeit male-centric, being a fusion of the two systems – matrilineal and patriarchal.
Thesawalamai, principally deals with topics such as succession, property, marriage, adoption, servitude and contracts peculiar to an agricultural community, caste and slavery. The Code consists of 76 Orders which deal with these subjects.
In the ideal world all who have rights to seek state land should, and the provincial administration must make every effort to realize the letter and spirit of the law. In doing a whole new class of land ownership will come to life. Built on it, maximizing productive use, giving each owner and family a sense of belonging could be achieved.
